HUMAN
RIGHTS IN THE ADMINISTRATION OF JUSTICE
Chapter 15: Protection and Redress for Victims of Crime and
Human Rights Violations

Chapter 15

PROTECTION AND REDRESS FOR VICTIMS OF CRIME AND HUMAN RIGHTS VIOLATIONS

Learning Objectives

_ To sensitize the participants to the effects that crime and human rights violations
may have on the victims
_ To familiarize the participants with existing international legal rules governing
protection and redress for victims of crime and human rights violations
_ To identify steps that States must take in order to provide redress and protection
for victims of crime and human rights violations
_ To increase the participants’ awareness of their potential as judges,
prosecutors and lawyers in protecting victims of crime and human rights violations

Questions

_ What are the needs, problems and interests, in your view, of victims of
ordinary crime?
_ What types of legal protection and/or redress exist in your country for victims
of ordinary crime? Give examples, such as cases of persons abused or maltreated
by common criminals?
_ Do victims of crime face any special problems in the country in which you
are exercising your professional responsibilities?
_ If so, what are they and what is being done to remedy the situation?
_ Are there any particularly vulnerable groups of victims in your country, such
as abused women and children?
_ If so, what is done to protect them if they denounce the perpetrator of the
abuse?
_ What measures, if any, are taken in the country in which you work to help
protect other witnesses, such as informers, whose lives may be in danger following
their testimony?
_ What types of legal protection and/or redress exist in your country for, among
others, the following categories of people in the event of human rights violations?
– detainees who consider that they are arbitrarily detained;
– detainees who are subjected to ill-treatment, and, in particular, women
and children;
– persons in incommunicado detention;
– victims or their dependants in cases of abduction and extrajudicial
killings;
– offenders who have not enjoyed basic due process guarantees during their
trial;
– women and children who are subjected to State, community or domestic
abuse, or threats of such abuse;
– persons subjected to gender, racial or other kinds of discrimination;
_ Do victims of human rights violations face any special problems in the country
in which you are exercising your professional responsibilities?
_ If so, what are they and what is being done to remedy the situation?
_ Are there any particularly vulnerable groups in this regard in your country?
_ If so, who are they, what are their problems, and what is being done to help
them?
_ How do you perceive your role as judges, prosecutors and/or lawyers in ensuring
effective protection and redress for victims of human rights violations?
_ What are your views on amnesty or impunity laws, which imply that perpetrators
of crimes and human rights violations will not be prosecuted for their unlawful
acts?

Relevant Legal Instruments
Universal Instruments
_ International Covenant on Civil and Political Rights, 1966
_ International Covenant on Economic, Social and Cultural Rights, 1966
_ International Convention on the Elimination of All Forms of Racial Discrimination,
1965
_ Convention on the Elimination of All Forms of Discrimination against Women,
1979
_ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
of Punishment, 1984
_ Convention on the Rights of the Child, 1989
_ United Nations Convention against Transnational Organized Crime, 2000, and
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the Convention
_ Universal Declaration of Human Rights, 1948
_ Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power, 1985
_ Vienna Declaration and Programme of Action, 1993

Regional Instruments
_ African Charter on Human and Peoples’ Rights, 1981
_ American Convention on Human Rights, 1969
_ Inter-American Convention on the Prevention, Punishment, and Eradication of
Violence against Women, 1994
_ European Convention on Human Rights, 1950
_ European Convention on the Compensation of Victims of Violent Crimes, 1983
_ Committee of Ministers Recommendation No. R (85) 11 to the Members States
of the Council of Europe on the Position of the Victim in the Framework of Criminal
Law and Procedure, 1985

1. Introduction

The present chapter will deal with two basically distinct, but also clearly
related issues, namely protection and redress for victims of crime, on the one
hand, and
protection and redress for victims of human rights violations, on the other.
Generally speaking, conventional crimes are committed by people in their private
capacity against national penal law, and Governments are not, in principle,
responsible for the illegal conduct involved. Acts constituting human rights
violations are committed by organs or persons in the name of or on behalf of
the State, for instance by the Government, parliament, the courts, prosecutors,
police officers and other law enforcement officials. As will be seen below,
however, Governments may also, in specific cases, be responsible for the acts
of private individuals. These acts may constitute violations of the fundamental
rights and freedoms of persons under international human rights law and/or under
domestic constitutional or ordinary legislation. Admittedly, however, this distinction
between victims of crime and human rights violations is not always clear-cut,
but it serves as a convenient point of departure for the presentation of the
legal problems dealt with in this chapter. That being said, it is important
to bear in mind throughout this chapter that to
some extent victims of crime and human rights violations have many interests
and needs in common, such as a possible need for medical attention, including
help for
emotional problems, compensation for financial loss and various forms of special
protection and/or assistance. The principles dealt with below in relation to
victims of crime and human rights violations can thus be viewed as mutually
reinforcing whenever an assessment must be made of the victim’s needs
and the adequate response by society to those needs. It should further be noted
that it is impossible, within such a limited framework, to provide a comprehensive
account and analysis of the needs of victims of crime and human rights violations,
and the response to the victims, including the establishment of victims’
programmes. As increased attention has been focused on victims’ rights
in recent years, much research has been carried out that can provide help and
stimulation to legal practitioners and to social workers and other professional
groups who may be called upon to assist victims of crime and human rights violations
in recovering from the negative effects of unlawful acts. For suggested reading
on this issue, see Handout No. 1.

The first part of this chapter will deal with protection and redress for victims
of crime. As will be seen, however, international law does not regulate in detail
the
question of protection and redress for victims of ordinary crime, although attempts
have been made to increase the focus on the plight of victims so as to encourage
Governments to provide them with adequate help and support. The chapter will
review the limited rules that do exist in the hope that it may inspire further
discussion of the problems facing victims of crime, the main purpose being to
increase participants’ awareness of the importance of paying due attention
to their feelings, needs and interests at all stages of the judicial process.
It should furthermore be pointed out that conventional crimes cover not only
more traditional crimes such as ill-treatment, murder, trafficking, sexual and
other abuses, theft, burglary and so forth, but also various kinds of organized
crime and corruption, as well as, for instance, the relatively new category
of cybercrimes.1 On the other hand, it will not be possible
to deal in detail with the various interests that different categories of victims
have or may have, and the chapter will therefore deal only, in relatively general
terms, with the problems of victims of crime.

The second part of this chapter will consider the international rules governing
the legal duties of States to provide effective protection and redress to victims
of
human rights violations. In this regard, some relatively clear rules exist in
international human rights law, which have been further clarified in the substantial
case law of the international monitoring bodies. The chapter will analyse, in
particular, States’ general legal duty to ensure the effective protection
of human rights, and their specific duties to prevent violations of human rights,
to provide effective domestic remedies for alleged violations of a person’s
human rights, and to investigate, prosecute and punish such violations and provide
redress to the victim concerned. The chapter will also discuss the question
of impunity for human rights violations. Lastly, it will make recommendations
regarding the role of the legal professions in providing protection and redress
for victims of crime and human rights violations, and close with some concluding
remarks.

2. Protection and Redress for Victims of Crime

2.1 Relevant legal provisions

2.1.1 The universal level

While there is no universal convention dealing with the rights of victims of
conventional crimes, the United Nations General Assembly adopted, in 1985, the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, the text of which had been approved by consensus by the Seventh United
Nations Congress on the Prevention of Crime and the Treatment of Offenders.2
To promote implementation, a Guide for Practitioners Regarding the Implementation
of the Declaration was prepared,3 and the United Nations Economic
and Social Council, by resolution 1990/22 of 24 May 1990, invited the
Eighth United Nations Congress on the Prevention of Crime and the Treatment
of Offenders to give wide distribution to the Guide.4 The Declaration
defines the notion of victim of crime and abuse of power and specifies victims’
rights of access to justice and fair treatment, restitution, compensation and
assistance. Insofar as it deals with victims of abuse of power, it will be considered
in section 3 infra. As pointed out in the Guide for Practitioners, the basic
principles contained in
the Declaration “apply, without discrimination, to all countries, at every
stage of development and in every system, as well as to all victims”.5
They furthermore “place corresponding responsibilities on central and
local government, on those charged with the administration of the criminal justice
system and other agencies that come into contact with the victim, and on individual
practitioners”.6 Paragraph 3 of the Declaration states
expressly that: “The provisions contained herein shall be applicable to
all, without distinction of any kind, such as race, colour, sex, age, language,
religion, nationality, political or other opinion, cultural beliefs or practices,
property, birth or family status, ethnic or social origin, and disability.”
Lastly, it is of interest to note that, although it was not in force on 24 June
2002, the United Nations Convention against Transnational Organized Crime, which
was adopted by the General Assembly on 15 November 2000, contains specific
provisions in article 25 concerning “Assistance to and protection of victims”.
Article 6 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing that Convention, contains even
more detailed rules regarding “Assistance to and protection of victims
of trafficking in persons”. The text of these provisions may be found
in Handout No. 2. However, as the Convention on Transnational Organized Crime
had, as of 24 June 2002, only 15 out of the 40 ratifications required before
it can enter into force, it will not be further dealt with in this chapter.
By the same date, the Protocol had been ratified by 12 States.

2.1.2 The regional level

At the regional level, the member States of the Council of Europe concluded,
in 1983, the European Convention on the Compensation of Victims of Violent
Crimes, which entered into force on 1 February 1988. As of 23 June 2002, it
had secured a total of fifteen ratifications and accessions.7
This treaty was drafted in
response to an increased awareness that assistance to victims “must be
a constant concern of crime policy, on a par with the penal treatment of offenders.
Such assistance includes measures designed to alleviate psychological distress
as well as to make reparation for the victim’s physical injuries.”8
It was also considered necessary to compensate the victim in order “to
quell the social conflict caused by the offence and make it easier to apply
rational, effective crime policy”.9
One of the concerns underlying the Convention was to provide a compensation
scheme that would allow States to step in and compensate the victim or
his or her dependants, who rarely obtained any compensation in practice because
of the offender’s non-apprehension, disappearance or lack of means.10
Another concern was to give increased protection to foreigners moving between
the member States of the Council of Europe.11 The European
Committee on Crime Problems of the Council of Europe is to be “kept informed
regarding the application of the Convention” and the States parties are
to transmit to the Secretary-General of the Council of Europe “any relevant
information about its legislative or regulatory provisions concerning the matters
covered by the Convention” (art. 13). For more details of the principles
laid down by this Convention, which are limited to compensation, see infra,
subsections 2.2 and 2.4.3. By virtue of Recommendation No. R (85) 11 on the
Position of the Victim in the Framework of Criminal Law and Procedure, the Committee
of Ministers of the Council of Europe expanded on the need to protect victims
of crime who may suffer physical, psychological, material and social harm and
whose needs “should be taken into account to a greater degree, throughout
all stages of the criminal justice process”.12 The preamble
to the Recommendation states that the operation of the
criminal justice system “has sometimes tended to add to rather than to
diminish the problems of the victim,” that “it must be a fundamental
function of criminal justice to meet the needs and to safeguard the interests
of the victim” and that “it is also important to enhance the confidence
of the victim in criminal justice and to encourage his co-operation, especially
in his capacity as a witness.”13 Moreover, measures
to help the victims “need not necessarily conflict with other objectives
of criminal law and procedure, such as the reinforcement of social norms and
the rehabilitation of offenders, but may in fact assist in their achievement
and in an eventual reconciliation between the victim and the offender”.14
The member States of the Council of Europe were therefore asked to “review
their legislation and practice” in accordance with the guidelines contained
in the Recommendation and which relate to:
_ the police level
_ prosecution
_ questioning of the victim
_ court proceedings
_ the enforcement stage
_ the protection of privacy
_ special protection of the victim
_ conflict resolution schemes
_ research

The recommendations relating to the first seven of these stages of the administration
of criminal justice will be dealt with in the appropriate context below. On
the other hand, this chapter will not discuss conflict resolution and the promotion
of further research in that area. It should be noted, however, that mediation
between
offender and victim may, especially in the case of relatively minor crimes,
be an interesting way of pursuing justice and dealing with anti-social behaviour.
However, the advantages and disadvantages of resorting to conflict resolution
schemes in the field of criminal justice is a multi-dimensional discussion that
lies beyond the scope of this chapter.

2.2 The notion of victim

According to paragraph 1 of the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, the term “victims” “means
persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment
of their fundamental rights, through acts or omissions that are in violation
of criminal laws operative within Member States, including those laws proscribing
criminal abuse of power”.
This definition covers many categories of harm sustained by people as a consequence
of criminal conduct, ranging from physical and psychological injury to
financial or other forms of damage to their rights, irrespective of whether
the injury or damage concerned was the result of positive conduct or a failure
to act.
Quite importantly, according to paragraph 2 of the Declaration a person may
be considered a victim “regardless of whether the perpetrator is identified,
apprehended, prosecuted or convicted and regardless of the familial relationship
between the perpetrator and the victim”. According to the same article:
“The term ‘victim’ also includes, where appropriate, the immediate
family or dependants of the direct victims and persons who have suffered harm
in intervening to assist victims in distress or to prevent victimization.”
Lastly, as pointed out in subsection 2.1.1 above, the provisions of the Declaration,
in full consistency with the principle of equality and the prohibition of discrimination
under international human rights law dealt with in Chapter 13 of this Manual,
are, according to paragraph 3, applicable to all, without distinction of any
kind on the grounds enumerated in the paragraph or on other grounds.

The European Convention on the Compensation of Victims of Violent Crimes contains
no explicit definition of the notion of “victim” and, as made clear
by
the title, its framework is somewhat limited in that it obliges the State to
provide compensation to victims of crime only when “compensation is not
fully available from other sources”. Moreover, only the following two
categories of victim may qualify for compensation:

_ “those who have sustained serious bodily injury or impairment of health
directly attributable to an intentional crime of violence”, and
_ “the dependents of persons who have died as a result of such crime”
– article 2(1)(a) and (b).
However, a victim for the purposes of the Convention may be a person who has
been injured or killed when trying to prevent an offence or when “helping
the
police to prevent the offence, apprehend the culprit or help the victim”.15
As made clear by article 2, the Convention does not provide a right to compensation
in respect of criminal conduct in general but only in respect of violent crime,
nor does it foresee other kinds of help and assistance for victimized persons.
This somewhat restrictive framework seems to limit the impact that the Convention
might have in terms of providing constructive support to victims of crime, support
that should be available throughout the criminal justice system. However, the
1985 Recommendation of the Committee of Ministers on the Position of the Victim
in the Framework of Criminal Law and Procedure, while not legally binding, adopts
a more holistic approach to the problems faced by victims of crime, a victim-oriented
approach that covers all stages of criminal proceedings, from the police level
to the enforcement stage, and takes into account the possible need for special
protection for the victim.

It is important for members of the legal professions to be aware that the impact
on victims of crime is not necessarily limited to physical injury and loss of
property, but may also include “loss of time in obtaining financial redress
and replacing damaged goods”.16 Moreover, at the psychological
level, victims may be afflicted by a sense of disbelief, a reaction that may
be followed by a state of shock, disorientation or even fear and anger.17
Indeed, when seeking a reason for the crime, victims may experience guilt themselves
for what occurred.18 Although people react differently to
crime and do not all suffer serious or long-lasting effects, emotional reactions
can affect everybody and a failure to respond or an inadequate response to such
emotions on the part of the responsible authorities may exacerbate feelings
of anger and fear.19 As noted in the Guide for Practitioners,
“A peaceful and orderly resolution of conflicts depends upon showing compassion
and respect for the dignity of victims by meeting their expectations.”20

2.3 Treatment of victims in the administration of justice

Attempts to date at the international level to improve the position of victims
in the administration of justice are an admission of the fact that national
justice systems
have often focused on the offender and his or her relationship with the State,
to the exclusion of the rights, needs and interests of victims. Although international
law is still rudimentary in this field, some useful guidelines have been developed
and will be dealt with below in the logical order of their relevance to the
practical workings of the administration of justice. It may be said at the outset
that the primary concern should, in general, be to ensure that persons whose
rights have been violated in one way or another feel that justice has been done.
It is therefore important always to bear in mind that, to avoid further disillusionment
on the part of victims of crime, everybody working in the criminal justice system
must show respect and understanding for their concerns, needs and interests.
Thoughtlessness and lack of consideration might otherwise needlessly add to
victims’ pain and disappointment. 21 To ensure justice
for persons who suffer victimization, it is also vital to establish and strengthen
judicial and administrative mechanisms. As stated in paragraph 5 of the Declaration
of Basic Principles, victims of crime should be enabled “to obtain redress
through formal or informal procedures that are expeditious, fair, inexpensive
and accessible”. According to the same provision, victims “should
be informed of their rights in seeking redress through such mechanisms”.
As will be seen below, this duty to inform constitutes an essential part of
the responsibilities of various law enforcement authorities vis-à-vis
victims of crime.

2.3.1 Treatment of victims by the police

After a criminal offence has been committed, the victim’s first contact
with the justice system is usually through the police, and this contact may
continue for a
considerable part of the judicial process. The response of the police during
this first encounter may have a decisive impact on the victim’s attitude
to the criminal justice system as such. Their role is therefore crucial at this
early stage of the criminal process.22 The Declaration on
Basic Principles provides little guidance on police conduct as such, although
paragraph 4 makes the general statement that victims “should be treated
with compassion and respect for their dignity”, a rule that is equally
valid for the police. The only explicit reference to the police is contained
in paragraph 16, according to which police personnel constitute one of the groups
that should receive training to sensitize them to the needs of victims and guidelines
to ensure proper and prompt aid.

However, according to paragraph 6, which should be interpreted as applying also
to police investigations of crime, “the responsiveness of judicial and
administrative processes to the needs of victims should be facilitated by”,
inter alia,
_ “Informing victims of their role and the scope, timing and progress
of the proceedings and of the disposition of their cases, especially where serious
crimes are
involved and where they have requested such information” – paragraph
6(a);
_ “Allowing the views and concerns of victims to be presented and considered
at appropriate stages of the proceedings where their personal interests are
affected,
without prejudice to the accused and consistent with the relevant national criminal
justice system” – paragraph 6(b);
_ “Providing proper assistance to victims throughout the legal process”
– paragraph 6(c).

According to the Council of Europe Recommendation on the Position of the Victim:
_ “Police officers should be trained to deal with victims in a sympathetic,
constructive and reassuring manner” – Part IA, paragraph 1;
_ “The police should inform the victim about the possibilities of obtaining
assistance, practical and legal advice, compensation from the offender and state
compensation” – Part IA, paragraph 2;
_ “The victim should be able to obtain information on the outcome of the
police investigation” – Part IA, paragraph 3;
_ “In any report to the prosecuting authorities, the police should give
as clear and complete a statement as possible of the injuries and losses suffered
by the victim” – Part IA, paragraph 4.

It follows from these provisions that a first important aspect of the role of
the police is to show due courtesy and respect. They must also ensure that the
victim feels
“that the offence is being considered individually and properly”.
Consequently, to prevent a sense of frustration among victims or increased anger,
fear and insecurity, police officers should avoid conveying the impression that
the crime is trivial or otherwise not being taken seriously.23
Respect, compassion and understanding for victims should thus be the hallmark
of police conduct at this stage, including a willingness to speak to the victims
in language that they understand, avoiding professional jargon to the extent
possible. Second, the police are particularly well placed to inform victims
of crime of ways in which they can obtain assistance, compensation and other
kinds of help. For instance, they can refer victims to specialized assistance
agencies and should preferably provide the information in both oral and written
form, since the victims may at this stage be too upset to take on board all
oral information given.24 In this connection, the
police may also wish to reassure victims by emphasizing that crime is not tolerated25
and that they will do their best to investigate the victim’s case. A third
important role for the police is as transmitter to victims of various kinds
of essential information regarding the judicial process. The continuous sharing
of information that is of relevance to victims and their needs and interests
is of fundamental importance in ensuring that they feel involved in the criminal
proceedings, an aspect that has long been neglected in the criminal justice
system. In particular, victims need to be adequately informed about the role
they might play in the proceedings.26 Again, all such information
should preferably be conveyed to the victim in both oral and written form. To
this end, well-written guides could prove helpful.27 On the
question of information, it is important to reiterate that, according to the
Council of Europe Recommendation on the Position of the Victim, the victim should
be able to obtain information on the outcome of the police investigation and,
lastly, that “in any report to the prosecuting authorities, the police
should give as clear and complete a statement as possible of the injuries and
losses suffered by the victim”. Both points are essential in reassuring
the victim that his or her problems and needs are being given due consideration
by the competent authorities. A failure to inform the victim about the result
of the police investigation may undermine his or her confidence in the judicial
criminal system and its capacity to deal with crime and the effects of crime.
Furthermore, unless the prosecuting authorities are in possession of a detailed
and adequate account of the effects of the crime on the victim or victims concerned,
they may not be able adequately to assess the seriousness of the unlawful act,
which, again, may cause the victim to feel neglected and lose confidence in
the judicial process. The police must at all times show respect for, and courtesy
towards, victims of crime. The police should provide victims of crime with information
about available help, assistance and compensation for injuries and losses they
have sustained as a result of the crime. The police should share other relevant
information with victims of crime, including information on the role that victims
may play in the criminal proceedings. The police should inform victims of the
outcome of their investigation and provide the prosecution with detailed information
as to the effect or effects that the relevant crime had and continues to have
on the victims concerned. By treating victims with respect and understanding,
and by sharing relevant information with them, the police help to promote confidence
in the criminal justice system.

2.3.2 Treatment of victims by the prosecution

As in the case of the police, the Declaration of Basic Principles does not deal
expressis verbis with the manner in which the prosecuting authorities should
deal with
victims of crime, but the same general principles are valid. Thus, the prosecution
must also treat victims with “compassion and respect for their dignity”
and keep them informed about their role, the scope, timing and progress of the
proceedings and the outcome of the investigations. Morever, for the same reasons
as were stated above, it must allow victims to convey their views and concerns.

According to the Council of Europe Recommendation on the Position of Victims:
_ “A discretionary decision whether to prosecute the offender should not
be taken without due consideration of the question of compensation of the victim,
including any serious effort made to that end by the offender” –
Part. IB, paragraph 5;
_ “The victim should be informed of the final decision concerning prosecution,
unless he indicates that he does not want this information” – Part.
IB, paragraph 6;
_ “The victim should have the right to ask for a review by a competent
authority of a decision not to prosecute, or the right to institute private
proceedings” – Part IB, paragraph. 7.

As noted in the Guide for Practitioners, the criminal justice system differs
from one country to another, and so does the role played by the victim. For
instance, in
some countries the victim can only serve as a prosecution witness, while in
others he or she can also prosecute.28 However, irrespective
of the judicial system in force, the question of information for victims –
as shown by both the Declaration of Principles and the Recommendation on the
Position of Victims – remains of fundamental importance throughout the
proceedings, also when the case is in the hands of the prosecution. In addition
to any information of general value that the prosecutor’s office may distribute
to victims, specific material should also be provided about a victim’s
case. To enable victims to play a constructive role in the investigation, and
to prevent disillusionment with the criminal justice system, the information
imparted by the prosecuting authorities must be relevant and adequate.29
It is particularly important “that victims should believe that their case
has been fully and carefully considered, and that they have confidence in the
decision that is made to prosecute or not”.30 As recognized
at the European level, it is also important for victims who are dissatisfied
with the decision not to prosecute to have a right of review or the right to
institute private proceedings. With regard to the right of review, different
mechanisms have been adopted in practice such as review by superior prosecutors,
by the courts or even by an ombudsman. Another possibility is that of private
prosecution.31 The prosecuting authorities should at all times
show respect for, and courtesy towards, victims of crime. The prosecuting authorities
should keep victims informed about their role
in the investigations and about the scope, timing and progress of the proceedings.
The prosecuting authorities should inform the victim of the outcome of the
investigation unless, at least at the European level, the victim has indicated
that he or she does not wish to have this information. Where the competent authority
decides not to prosecute, the victim should be entitled to have the decision
reviewed or should be able to bring a private prosecution.

2.3.3 Questioning of victims during criminal procedures

The duty to treat victims of crime “with compassion and respect for their
dignity” (Principle 4 of the Declaration of Basic Principles) is particularly
relevant in the
context of the questioning of victims, whether the questioning is carried out
by the police, a prosecutor or a judge in court. To give evidence in court may
be a particularly intimidating experience, especially if the victim has had
no earlier contact with the criminal justice system.32 Specific
assistance for victims may be helpful “to ensure that the victim feels
that he or she has been able to participate properly and that the court has
the best evidence before it”.33 Special assistance to
victims who have to testify in court may be of particular value to victims of
rape and child abuse. The use of trained counsellors, video-taped evidence or
direct video links may be helpful in this respect, as may legal aid to victims
so that they can have there own legal adviser. This is particularly important,
inter alia, when the victim’s civil claim is heard at the same time as
the criminal prosecution.34

According to the Council of Europe Recommendation on the Position of Victims,
the victim should, at all stages of the procedure, “be questioned in a
manner
which gives due consideration to his personal situation, his rights and his
dignity. Whenever possible and appropriate, children and the mentally ill or
handicapped
should be questioned in the presence of their parents or guardians or other
persons qualified to assist them” (Part IC, para. 8).

Apart from the abovementioned categories of crime victim, persons who may need
particular help and support in connection with questioning include victims of
trafficking, of racially motivated criminal acts or of terrorist acts. Whenever
a victim is, for instance, a foreign national and does not speak the local language,
particular attention has to be paid to ensuring that he or she is treated with
dignity and that all relevant information is conveyed in a language that is
understood. Special assistance may also be required to support and reassure
crime victims belonging to minority groups. Questioning by the police, a prosecutor
or a judge of victims of crime must be carried out with compassion and respect
for their dignity. Special assistance to victims testifying in court may be
necessary to reassure the
victims and ensure that they play a proper role in the proceedings. Special
assistance may be needed, inter alia, for victims of sex crimes, child abuse,
trafficking or terrorist acts and for victims of foreign nationality, members
of minority groups and persons with disabilities.

2.3.4 Victims and criminal court proceedings

Paragraph 6 of the Declaration of Principles also covers court proceedings,
which means that victims should, for instance, be informed about the time and
scope of
the proceedings and the role they are expected to play. As noted in the previous
subsection, it may be helpful to provide special assistance to victims at this
stage too. Such assistance is envisaged in paragraph 6(c) of the Declaration.
It is also important for victims that unnecessary delays in the disposition
of the case be avoided (paragraph 6(e)).

According to the Council of Europe Recommendation on the Position of Victims,
the victim should be informed of
_ “the date and place of a hearing concerning an offence which caused
him suffering ;
_ his opportunities of obtaining restitution and compensation within the criminal
justice process, legal assistance and advice ;
_ how he can find out the outcome of the case” (Part ID, para. 9).
“It should be possible for a criminal court to order compensation by the
offender to the victim” and “legislation should provide that compensation
may either
be a penal sanction, or a substitute for a penal sanction or be awarded in addition
to a penal sanction” (Part ID, paras. 10-11).

To inspire confidence in the justice system, the presiding judge should make
sure that victims are given due notice of the trial proceedings and that their
views are
adequately conveyed to the court. Victims should be duly notified of any delay
in or adjournment of the proceedings and should be informed about how to obtain
the judgment in the case. It is essential that the presiding judge ensures that
victims have been adequately informed about any rights they may have to compensation
and restitution so that they may, for instance, formulate their claims properly.
Victims of crime should be informed of the date and place of the court proceedings
concerning the crime whose effects they are suffering and should also be informed
of any delay or adjournment. Victims of crime should be duly informed of any
rights they have to obtain restitution or compensation for the crime concerned.
Victims of crime should be informed of how to obtain a copy of the judgment
relating to the crime.

2.3.5 Victims’ right to protection of their private life and their safety

According to paragraph 6(d) of the Declaration of Basic Principles, the responsiveness
of judicial and administrative processes to the needs of victims should
be facilitated by: “Taking measures to minimize inconvenience to victims,
protect their privacy, when necessary, and ensure their safety, as well as that
of their
families and witnesses on their behalf, from intimidation and retaliation”.

On this issue the Council of Europe Recommendation on the Position of Victims
states that: “Information and public relations policies in connection
with the
investigation and trial of offences should give due consideration to the need
to protect the victim from any publicity which will unduly affect his private
life or dignity. If the type of offence or the particular status or personal
situation and safety of the victim make such special protection necessary, either
the trial before the judgment should be held in camera or disclosure or publication
of personal information should be restricted to whatever extent is appropriate”
(Part IF, para. 15).
It is further recommended that, “whenever this appears necessary, and
especially when organised crime is involved, the victim and his family should
be given
effective protection against intimidation and the risk of retaliation by the
offender” (Part IG, para. 16).

While publicity may be important, inter alia, for educating both legal professionals
and the public about the effects of victimization, it may also be so distressing
to victims that their identity should be withheld.35 Publicity
may have a particularly devastating effect on victims in cases of sexual abuse,
including child abuse,
as well as in cases of organized crime and terrorism where disclosure of identity
may place the victim’s life in danger. As a rule, it is in any event advisable
to obtain the victims’ consent before they are identified in the mass
media.36 Whenever the life and safety of victims, witnesses
and their family members are in danger as a consequence of retaliation, it may
not be sufficient to withhold the person’s identity. The judicial authorities
may have to take additional measures, such as withholding other relevant information
and providing other forms of special protection. In particularly serious cases,
it may also be necessary to hold the court
proceedings in camera, although international human rights law imposes specific
restrictions on any such decision (see article 14(1) of the International Covenant
on
Civil and Political Rights, article 8(5) of the American Convention on Human
Rights and article 6(1) of the European Convention on Human Rights). In extreme
cases, it may even be necessary for the competent authorities to provide special
police protection for the victims concerned, as well as for relatives and witnesses.
Whenever necessary, the competent authorities should protect the privacy of
victims of crime and should also protect victims, their families and witnesses
on their behalf from intimidation and retaliation. Special protection of the
right to privacy and of the safety of persons may be particularly indicated
in cases of sexual abuse as well as in cases of organized crime and terrorism.
As a rule, it is always preferable to obtain the consent of the victim before
his or her name is given to the mass media.

2.4 Restitution, compensation and assistance to victims of crime

2.4.1 General remarks

The questions of restitution, compensation and assistance to victims of crime
will, of necessity, be addressed only in very general terms in this context,
as the issues at stake are too complex for more in-depth analysis. This part
is therefore limited to an outline of the general principles that should guide
national judicial authorities in providing some sense of justice to crime victims,
whose needs vary according to the nature of the crime committed, the place it
was committed and the situation of the victims themselves.

2.4.2 Restitution

According to paragraph 8 of the Declaration of Principles of Justice: “Offenders
or third parties responsible for their behaviour should, where appropriate,
make fair restitution to victims, their families or dependants. Such restitution
should include the return of property or payment for the harm or loss suffered,
reimbursement of expenses incurred as a result of the victimization, the provision
of services and the restoration of rights.” Paragraph 9 states that “Governments
should review their practices, regulations and laws to consider restitution
as an available sentencing option in criminal cases, in addition to other criminal
sanctions.” The term “restitution” means in this context that
the offender restores to the victim the rights that were breached by the criminal
act. Restitution to victims is of course only possible when the property or
money stolen is still available. Restitution is not, therefore, a viable solution
in the case of violent crimes such as murder, where
there can be no reinstatement of rights. In addition to the restitution of property
or payment for the harm and loss suffered, the victim may also claim reimbursement
of certain expenses. Such claims may require a clear listing of expenses that
the victim has incurred as a result of victimization.37 Whenever
appropriate, persons responsible for criminal offences should make fair restitution
to the victims of their crimes for any harm or loss suffered. Through restitution,
the offender restores to the victim the rights that were breached.

2.4.3 Compensation

Irrespective of whether compensation is available from the State, financial
compensation from the offender for physical or psychological injuries or other
harm
sustained in connection with crime may be an important element for the victim
in that such compensation “is seen to be a recognition of the hurt done
to the victim by the offender”. When an order for such compensation is
made by the court, “it is also a symbol of the State’s concern for
the victim”.38 This kind of recognition may have an
important healing effect on the victim concerned and may also increase his or
her confidence in the criminal justice system. On this question, paragraph 12
of the Declaration on Basic Principles states that, “when compensation
is not fully available from the offender or other sources, States should endeavour
to provide financial compensation to: (a) Victims who have sustained significant
bodily injury or impairment of physical or mental health as a result of serious
crimes;
(b) The family, in particular dependants of persons who have died or become
physically or mentally incapacitated as a result of such victimization.”
Lastly, paragraph 13 of the Declaration states that: “The establishment,
strengthening and expansion of national funds for compensation to victims should
be encouraged. Where appropriate, other funds may also be established for this
purpose, including in those cases where the State of which the victim is a national
is not in a
position to compensate the victim for the harm.”

Under article 1 of the 1983 European Convention on the Compensation of Victims
of Violent Crimes, States parties “undertake to take the necessary steps
to give
effect to the principles set out in Part I of this Convention”. This means
that “when compensation is not fully available from other sources the
State shall contribute to compensate: a. those who have sustained serious bodily
injury or impairment of health directly attributable to an intentional crime
of violence; b. the dependents of persons who have died as a result of such
crime” (art. 2(1)). From this provision it follows that, for a victim
to qualify for State compensation, the offences must be
_ “intentional”;
_ “violent”;
_ “the direct cause of serious bodily injury or damage to health”.39
The reason for limiting the Convention to intentional offences is that “they
are particularly serious and give rise to compensation less often than non-intentional
offences, which include the huge range of road traffic offences and are in principle
covered by other schemes” such as private insurance and social security.40
The injury need not be physical, and compensation may also be payable “in
cases of psychological violence (for example serious threats) causing injury
or death”.41 The injury must, however, in all cases
be “serious and directly attributable to the crime”. A causal relationship
between the crime and the effects must, in other words, be proven.42
It follows that the Convention neither covers “slight injury or injury
not directly caused by the offence” nor “injury to other interests,
notably property”. However, poisoning, rape and arson “are to be
treated as intentional violence”.43 According to article
2(2) of the Convention, compensation “shall be awarded in the above cases
even if the offender cannot be prosecuted or punished”. For
instance, minors or mentally ill people may not be subject to prosecution or
may not be regarded as responsible for their acts, and an offender may even
escape prosecution because he or she has acted by necessity as in cases of self-defence.
It is of course essential that victims, in these cases too, should be able to
obtain compensation from the State if it is not available from other sources.44
Article 3 further specifies that “compensation shall be paid by the State
on whose territory the crime was committed [both] to nationals of the States
party to this Convention [and] to nationals of all member States of the Council
of Europe who are
permanent residents in the State on whose territory the crime was committed.”
The purpose of including the latter group of victims was to enhance the protection
of migrant workers.45 The Convention, which lays down minimum
provisions, does not, of course, prevent States parties from enlarging the scope
of the compensation available or from providing compensation to their nationals
who are victims of violent crime abroad or to all foreigners.46
It should be noted in this connection that paragraph 3 of the United Nations
Declaration of Basic Principles prohibits distinctions based on nationality.
It is also noteworthy that, according to the 1985 Council of Europe Recommendation
on the Position of the Victim, compensation as a penal sanction “should
be collected in the same way as fines and take priority over any other financial
sanction imposed on the offender. In all other cases, the victim should be assisted
in the collection of the money as much as possible” (Part IE, para. 14).
Items compensated: Compensation in any given case under the Council of Europe
Convention shall comprise “at least the following items”:
_ loss of earnings;
_ medical and hospitalization expenses;
_ funeral expenses;
_ as regards dependants, loss of maintenance (art. 4).
These are the minimum requirements for which “reasonable compensation”
shall be paid, provided that the loss is verified in each case.47
Depending on the terms of national legislation, other items that may be compensated
include:
_ “pain and suffering (pretium doloris);
_ loss of expectation of life;
_ additional expenses arising from disablement caused by an offence”.48

According to the Explanatory Report, “compensation of these items is to
be calculated by the state paying the compensation according to the scales normally
applied for social security or private insurance according to normal practice
under civil law.”49 Conditions for compensation: The
Convention imposes various conditions on the granting of compensation. First,
it allows the compensation scheme to set “an upper limit above which and
a minimum threshold below which such compensation shall not be granted”
(art. 5). Second, “the scheme may specify a period within which any application
for compensation must be made” (art. 6).
An upper limit may be necessary because funds for compensation are not unlimited
and a minimum threshold is considered justified by the principle of de minimis
non curat praetor, that is to say minor damage that can be covered by victims
themselves does not interest the judge.50 The Convention does
not set “rigidly quantified limits” for the simple reason that both
financial resources and living standards vary from country to country.51
With regard to the time-limit for lodging a claim for compensation, it is important
that such claims be made as soon as possible after the commission of the crime
so that:
_ “the victim may be assisted if in physical and psychological distress;
_ the damage may be ascertained and assessed without untoward difficulty”.52
Early professional care for crime victims may also increase the chances of a
speedy recovery and thus reduce medical and other costs incurred for rehabilitation.
Third, compensation under the 1983 Convention may be reduced or refused “on
account of the applicant’s financial situation” (art. 7). The idea
is that, since
compensation from public funds to a victim of crime “is an act of social
solidarity, it may be unnecessary where the victim or his dependents are plainly
comfortably off”. On the other hand, there is nothing in the Convention
that prevents States from awarding compensation “regardless of the victim’s
or his dependants’ financial
position”.53 Lastly, compensation may also be “reduced
or refused”
_ “on account of the victim’s or the applicant’s conduct before,
during or after the crime, or in relation to the injury or death” –
article 8(1);
_ “on account of the victim’s or the applicant’s involvement
in organised crime or his membership of an organisation which engages in crimes
of violence” – article 8(2);
_ “if an award or a full award would be contrary to a sense of justice
or to public policy (ordre public)” – article 8(3).

The first of these grounds relates to improper behaviour by the victim in relation
to the crime or to the damage suffered, and “refers to cases where the
victim
triggers the crime, for example by behaving exceptionally provocatively or aggressively,
or causes worse violence through criminal retaliation, as well as to cases where
the victim by his behaviour contributes to the causation or aggravation of the
damage (for example by unreasonably refusing medical treatment)”. Another
reason for reducing or withholding compensation on this ground may be the refusal
of the victim “to report the offence to the police or to co-operate with
the administration of justice”.54 The second ground
for reducing or even refusing compensation is where the victim “belongs
to the world of organised crime (for example drug trafficking) or of organisations
which commit acts of violence (for example terrorist organisations)”.
The victim may in such a case “be regarded as forfeiting the sympathy
or solidarity of society as a whole [and may] be refused compensation or be
paid reduced compensation, even if the crime which caused the damage was not
directly related to the foregoing activities”.55 Lastly,
States parties may reduce or refuse compensation to victims of crime when it
would be repugnant to a sense of justice or contrary to public policy (ordre
public). In such cases, they retain some discretion in awarding compensation
and can refuse it “in certain cases where it is clear that a gesture of
solidarity would be contrary to public feeling or interests or would be contrary
to the basic principles of the
legislation of the state concerned”. For example, “a known criminal
who was the victim of a crime of violence could be refused compensation even
if the crime in question was unrelated to his criminal activities.”56
The abovementioned principles for reducing or refusing compensation to victims
of crime are equally applicable to dependants of victims who died as a result
of violent crime.57 Other relevant issues: The Convention
also contains provisions concerning the avoidance of double compensation and
the subrogation of rights, and requires States parties to take appropriate steps
“to ensure that information about the scheme is available to potential
applicants” (arts. 9-11). For instance, in order to avoid double compensation
under article 9 of the Convention, “compensation already received from
the offender or other sources may be deducted from the amount of compensation
payable from public funds. It is for the Parties to specify which sums are so
deductible.”58 The States may require that compensation
received by the victim from the offender after he or she has been compensated
by public funds be repaid in full or in part, depending on the sums involved.59
This situation can arise, for instance, “where a victim suffering hardship
receives state compensation pending decision of an action brought against an
offender or agency [or where] the offender, unknown at the time of compensation
from public funds, is subsequently traced and convicted, and has fully or partly
made reparation to the victim”.60 For public compensation
schemes to be useful, the public must know about their existence. But studies
have found that, because of public ignorance, such schemes are rarely used.61
To remedy this situation, article 11 of the Convention imposes a duty
on States parties to see to it that information on public compensation schemes
is available to potential victims of crime. According to the Explanatory Report,
“the main responsibility for informing the victim of his compensation
rights should lie with the authorities and agencies dealing with him immediately
after the offence (the police, hospitals, the examining judge, the public prosecutor’s
office, etc.). Information, specially published by the competent authorities,
should be available to such agencies who should distribute this, whenever practicable,
to the persons concerned.”62 The mass media also have
a useful role to play in publicizing financial as well as other kinds of assistance
available to victims of crime.63 Compensation to victims of
crime for physical or psychological harm suffered as a consequence of crime
is an important recognition of concern for the victim. When such compensation
is not fully available from the offender or other sources such as private insurance,
the State should provide it either to the victim or to his or her dependants,
as the case may be. At the European level, member States of the Council of Europe
may have a treaty obligation to provide compensation to victims of violent crime
when such compensation is not available from other sources. Such compensation
may, however, be reduced or refused, inter alia in the light of the victim’s
conduct in relation to the commission of the criminal act or in cases where
the victim is known to be involved in organized crime such as drug trafficking
or terrorism.

2.4.4 Assistance

In addition to various financial needs, victims of violent crimes may also require
immediate or even long-term medical care as well as other forms of assistance.
These needs are recognized in paragraph 14 of the United Nations Declaration
of Basic Principles, according to which: “Victims should receive the necessary
material, medical, psychological and social assistance through governmental,
voluntary, community-based and indigenous means.” This provision envisages
various forms of assistance not only from the State but also from the community
and specialized associations. Much can be accomplished for victims of crimes
by developing strong local associations or agencies with specialized personnel
trained in the specific needs of crime victims.64 The need
for assistance can vary in terms of both the victim and the effects of victimization.
Injured victims clearly require swift medical help. Such help is also essential
in order to document the effects of the crime on the victim for the purpose
of proving any criminal prosecution or civil claim against the offender.65
Paragraph 17 of the Declaration of Basic Principles further emphasizes that
“in providing services and assistance to victims, attention should be
given to those who have special needs because of the nature of the harm inflicted”
or because of factors such as discrimination on the grounds listed in paragraph
3 of the Declaration. Certain groups of victims, such as victims of sexual crimes,
may indeed need specialized treatment, including long-term emotional support
by medical personnel skilled in dealing, for example, with rape victims. Victims
of serious sex crimes may also need medical follow-up over an extended period
owing to the HIV/AIDS problem.66 In many cases, victims of
terrorist attacks need not only extensive medical treatment but also both immediate
and long-term psychological assistance by specially trained professionals in
order to help them come to terms with the traumatic experience. Major criminal
events such as terrorist acts may also require specialized equipment such as
temporary housing, mortuaries, feeding stations and so forth. States should
be prepared to deal with this kind of situation by developing contingency plans
at the national, regional and local levels and should keep regularly updated
lists of equipment and qualified personnel.67 Victims may
also need various kinds of practical help after the commission of a crime. In
cases of burglary, locks or other damaged property may have to be repaired,
and victims of arson or domestic violence may need temporary accommodation.68
Other victims may need social support services for some time after the crime,
such as help with shopping or housekeeping and/or assistance in looking after
small children. For assistance schemes to work efficiently, information about
their existence is, as emphasized throughout this chapter, essential. Paragraph
15 of the Declaration of Basic Principles provides that: “Victims should
be informed of the availability of health and social services and other relevant
assistance and be readily afforded access to them.” As noted above, the
question of training for persons who deal with victims of crime is also important
and, as specified in paragraph 16 of the Declaration: “Police, justice,
health, social service and other personnel concerned should receive training
to sensitize them to the needs of victims, and guidelines to ensure proper and
prompt aid.” It is particularly important that members of the police force
and the legal
professions, such as judges, prosecutors and lawyers, are trained to have a
sound understanding of the traumatic impact that crime can have on human beings.
They should also be fully conversant with the terms of the compensation and
assistance schemes available to victims of crime so that they can ensure that
such information is consistently and effectively conveyed to the victims concerned.
Apart from financial needs, victims of crime may have a variety of needs of
a material, medical, psychological and social nature. Such needs for assistance
will vary according the situation of the victim and the nature of the crime.
To be able to provide victims of crime with prompt and efficient help, all relevant
professional groups, including judges, prosecutors and lawyers, must be sensitized
to the needs of victims and available assistance schemes.

3. Protection and Redress for Victims of Human Rights Violations

The second part of this chapter will deal exclusively with victims of human
rights violations. Contrary to the situation in respect of victims of ordinary
crime,
international human rights law lays down some clear legal rules regarding the
responsibility of States vis-à-vis abuses of power that constitute violations
of individual
rights and freedoms. Moreover, these rules have been further developed in a
large number of cases by the international monitoring bodies. However, only
a brief survey is feasible in this context of States’ general legal duty
to ensure the effective protection of human rights and of the most relevant
specific legal obligations that this entails: the duty to prevent human rights
violations; the duty to provide domestic remedies; and the duty to investigate
alleged human rights violations, to prosecute those suspected of having committed
them and to punish those found guilty. Lastly, the duty to provide restitution
or compensation to victims of human rights violations and the problem of impunity
for human rights violations will be examined.69 Before States’
various duties to protect human rights are considered, the notion of “victim”
will be analysed.

3.1 The notion of victim

According to paragraph 18 of the United Nations Declaration of Basic Pinciples:
“‘Victims’ means persons who, individually or collectively,
have suffered
harm, including physical or mental injury, emotional suffering, economic loss
or substantial impairment of their fundamental rights, through acts or omissions
that do not yet constitute violations of national criminal laws but of internationally
recognized norms relating to human rights.” This definition is somewhat
peculiar in that, first, it seems to presume that violations of international
human rights standards are limited to the field of criminal law. This is not,
of course, the case. Such violations can also occur under civil law, such as
family law and the law of succession. Other fields of law that may be relevant
include press law, administrative law, labour law, social security law and environmental
law. Second, an act or omission may be contrary to national law and still constitute
a violation of international human rights law. Notwithstanding national law,
a State can in principle be held responsible at the international level for
an act or omission that
violates internationally recognized human rights standards until it has provided
an effective remedy to the victim or victims of the violation. Third, the reference
to “substantial” impairment raises some difficulties of interpretation
and cannot be adequately understood in the abstract. Indeed, an act or omission
on the part of a State may violate international human rights standards although
the impairment for the victim concerned has not been “substantial”.
The victim is still a “victim” as understood by international law,
but the response to the violation will vary accordingly. Instead of awarding
restitution or damages, the international monitoring body may, for instance,
consider the very finding of a violation in a specific case to be a sufficient
recognition of the harm incurred. In many cases, however, the violations are
grave and therefore require, as will be shown below, a variety of measures in
order to remedy or at least reduce the negative consequences of
such violations for the victims or their next-of-kin. It follows from the foregoing
that, for the purposes of the second part of this chapter, a much simpler definition
of a “victim” of human rights violations will have to be adopted:
A “victim” is a person whose nationally or internationally recognized
human rights and fundamental freedoms have been violated as a consequence of
governmental acts or omissions. It is important to point out that a “victim”
can also be a family member who is
suffering hardship because of a disappearance and/or arbitrary killing. The
Human Rights Committee and the Inter-American and European Courts of Human Rights
have all accepted that mothers of victims of a human rights violation may also
be considered to be victims. The profound sadness, stress and anguish that mothers
suffer as a result of such serious human rights violations constitute per se
a violation of their right not to be subjected to ill-treatment, as prohibited
by international legal standards such as article 7 of the International Covenant
on Civil and Political Rights, article 5(2) of the American Convention on Human
Rights and article 3 of the European Convention on Human Rights.70

A particularly serious aspect of abuses of power such as human rights violations
is that they are committed by – or at least with the knowledge of –
persons or
authorities that are expected to protect the individual and his or her rights
instead of violating them. In other words, the sense of trust that should have
existed has been seriously betrayed. The situation becomes singularly alarming
when violations of the right to life and the right to security and liberty of
the person occur and are even widespread, as when abduction, involuntary disappearances
and torture become part of a State’s administrative practice. Victimization
then often has a much deeper adverse impact on the persons affected than where
they are “simply” victims of ordinary crimes. For victims of State
or State-sponsored violence, it is important, for purposes of rehabilitation,
to obtain recognition by the State of the wrong committed and to receive various
forms of help and assistance. A “victim” is a person whose nationally
or internationally recognized human rights and fundamental freedoms have been
violated as a consequence of governmental acts or omissions. Close relatives
of disappeared, tortured and arbitrarily killed persons may be considered to
be victims of violations of their own right not to be
subjected to ill-treatment. Human rights violations are a particularly serious
form of abuse of power in that they are committed by – or with the knowledge
of – persons or authorities whose duty it is to protect the individual
and his or her rights. Victims of human rights violations may require multiple
forms of help
and assistance to deal with the effects of victimization, including recognition
by the State of the wrongs committed.

3.2 The general legal duty to ensure the effective protection of human rights

This section will simply highlight some general considerations relating to States’
legal duty effectively to protect human rights and fundamental freedoms. The
provisions dealing specifically with questions of prevention, domestic remedies,
investigations and so forth will be discussed in greater detail in the relevant
subsections below.

3.2.1 The universal level

Under article 2(1) of the International Covenant on Civil and Political Rights,
each State party “undertakes to respect and to ensure to all individuals
within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant” (emphasis added). In interpreting article 2, the Human Rights
Committee considers it necessary “to draw the attention of States parties
to the fact that the obligation under the Covenant is not confined to the respect
of human rights, but that States parties have also undertaken to ensure the
enjoyment of these rights to all individuals under their jurisdiction. This
aspect calls for specific activities by the States parties to enable individuals
to enjoy their rights.”71 The obligation to ensure thus
gives rise to positive State party obligations to secure the enjoyment of the
guaranteed rights and freedoms to all persons within their jurisdiction. It
follows from this basic and positive legal duty that States parties may also
be required effectively to investigate, prosecute and punish violations of individual
rights and freedoms.72

3.2.2 The regional level

At the regional level, article 1 of the African Charter on Human and Peoples’
Rights may at first sight seem to use somewhat less categorical language than
the
International Covenant when stating that States parties “shall recognize
the rights, duties and freedoms enshrined in this Charter and shall undertake
to adopt legislative or other measures to give effect to them”. However,
the reference to “other measures” suggests that this provision entails
a clear obligation to take affirmative steps to comply with the obligations
laid down by the Charter. This view has been confirmed by the African Commission
on Human and Peoples’ Rights, which has held that, under article 1 of
the African Charter, States parties not only “recognise the rights, obligations
and freedoms proclaimed in the Charter [but] they also commit themselves to
respect them and take measures to give effect to them”.73

As a general rule it must be emphasized that, notwithstanding the fact that
the legal obligations to “respect” and to “ensure” human
rights are not included expressis
verbis in the treaty concerned, States in any event have a legal duty to perform
their treaty obligations in good faith. This basic rule of international law,
also known as pacta sunt servanda, has been codified in article 26 of the Vienna
Convention on the Law of Treaties and is, of course, equally applicable to human
rights treaties as to other international treaties. By failing, for instance,
to prevent or vigorously to investigate alleged human rights violations and,
where need be, to follow up the investigation with a prosecution, a State undermines
its treaty obligations and hence also incurs international responsibility for
being in breach of the law.

Article 1 of the American Convention on Human Rights uses terms reminiscent
of those in article 2 of the International Covenant in that the States parties
“undertake to respect the rights and freedoms recognized herein and to
ensure to all persons subject to their jurisdiction the free and full exercise
of those rights and
freedoms without any discrimination” (emphasis added). These terms were
interpreted by the Inter-American Court of Human Rights in the Velásquez
Rodríguez case, which concerned the disappearance and likely death of
Mr. Velásquez at the hands of members of the Honduran National Office
of Investigation and the Armed Forces. With regard to the obligation to “respect
the rights and freedoms” recognized by the Convention, the Court emphasized
that “the exercise of public authority has certain limits which derive
from the fact that human rights are inherent attributes of human dignity and
are, therefore, superior to the power
of the State.” This also means that “the protection of human rights
must necessarily comprise the concept of the restriction of the exercise of
state power.”74
Moreover, the obligation to “ensure” the free and full exercise
of the rights guaranteed by the Convention “implies the duty of the States
Parties to organize the governmental apparatus and, in general, all the structures
through which public power is exercised, so that they are capable of juridically
ensuring the free and full
enjoyment of human rights. As a consequence of this obligation, the States must
prevent, investigate and punish any violation of the rights recognized by the
Convention and, moreover, if possible attempt to restore the right violated
and provide compensation as warranted for damages resulting from the violation.”75
The Court added that: “The obligation to ensure the free and full exercise
of human rights is not fulfilled by the existence of a legal system designed
to make it possible to comply with this obligation – it also requires
the government to conduct itself so as to effectively ensure the free and full
exercise of human rights.”76
What is “decisive” in determining whether a right recognized by
the Convention has been violated is, in the words of the Court, whether the
violation has
occurred “with the support of the acquiescence of the government, or whether
the State has allowed the act to take place without taking measures to prevent
it or to punish those responsible”.77 The States parties’
legal undertakings under article 1 of the American Convention thus form a clear
web of preventive, investigative, punitive and reparative duties aimed at effective
protection of the rights of the human person, all of which will be further detailed
below.

Lastly, article 1 of the European Convention on Human Rights stipulates that
“the High Contracting Parties shall secure to everyone within their jurisdiction
the
rights and freedoms defined in Section I of this Convention” (emphasis
added). Rather than giving an independent interpretation of the term “secure”
in article 1, the
European Court of Human Rights has preferred to weave this term into the other
substantive provisions of the Convention and its Protocols. For instance, when
interpreting the right to life as guaranteed by article 2 of the Convention,
the Court has held that the first sentence of article 2(1) “enjoins the
State not only to refrain from the intentional and unlawful taking of life,
but also to take appropriate steps to safeguard the lives of those within its
jurisdiction.”78 In the words of the Court: “This
involves a primary duty on the State to secure the right to life by putting
in place effective criminal-law provisions to deter the commission of offences
against the person backed up by law-enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions. It also extends in
appropriate circumstances to a positive obligation on the authorities to take
preventive operational measures to protect an individual or individuals whose
life is at risk from the criminal acts of another individual.”79

In the case of McCann and Others v. the United Kingdom, the Court held that
“a general legal prohibition of arbitrary killing by the agents of the
State would be
ineffective, in practice, if there existed no procedure for reviewing the lawfulness
of the use of lethal force by State authorities. The obligation to protect the
right to life [in article 2(1)], read in conjunction with the State’s
general duty under Article 1 of the Convention to ‘secure to everyone
within their jurisdiction the rights and freedoms defined in (the) Convention’,
requires by implication that there should be some form of effective official
investigation when individuals have been killed as a result of the use of force
by, inter alios, agents of the State.”80 The positive
obligations that may be “inherent in an effective respect of the rights
concerned”81 under the European Convention are not limited
to article 2 and the right to life but may also have implications for the protection
of other rights and freedoms such as the right to freedom from torture in article
3,82 the right to respect for one’s family life in article
8,83 the right to freedom of expression in article 1084
and the
right to freedom of peaceful assembly and to freedom of association in article
11.85 The nature and extent of such obligations depend, however,
on the right at issue and the facts of the case considered. Lastly, it should
be noted that the duty to secure the rights and freedoms laid down in the European
Convention and its Protocols may also entail a legal duty for the Contracting
States to take positive action to ensure respect for those rights and freedoms
between private citizens.86
Irrespective of the terms used in international human rights treaties, States
parties are duty bound to provide effective protection for the rights and freedoms
recognized therein to all persons within their jurisdiction. These legal obligations
comprise the duty effectively to prevent, investigate, prosecute, punish and
redress human rights violations. Positive obligations may be inherent in the
effective protection of a human right recognized by international law.

3.3 The duty to prevent human rights violations

Prevention is the alpha and omega of the effective protection of the rights
and freedoms of the human person, and it is thus the ultimate purpose of international
human rights law as well as a key to the creation of a national and international
society in which all persons can live in freedom, peace and security. Prevention,
the importance of which has been emphasized by all international monitoring
bodies, begins with the incorporation of international human rights obligations
in the domestic legal system.87 Domestic law must then be
consistently and fearlessly applied by all competent authorities, for instance
in full independence from the Executive, because a law, no matter how well and
elegantly drafted, only has a preventive impact if potential offenders know
that they will be pursued in the courts for their trespasses and crimes. Indeed,
the second part of this chapter illustrates some of the essential components
of prevention, namely the existence of effective domestic remedies and the prompt,
vigorous and impartial investigation of alleged human rights violations. However,
in many cases effective prevention also requires social, administrative, educational
and other measures such as international and cross-border cooperation,88depending
on the needs, problems and circumstances of the country involved. Some examples
are given below of references to prevention by the international monitoring
bodies relating to arbitrary killings, disappearances and torture.

3.3.1 The universal level

Although the Human Rights Committee has not elaborated its views on States parties’
duty to prevent human rights violations in general, it has often emphasized
the
need for prevention with regard to specific issues. Thus, States parties should
inform the Committee in their periodic reports about “the legislative,
administrative, judicial and other measures they take to prevent and punish
acts of torture” and other forms of ill-treatment in conformity with the
provisions of the International Covenant on Civil and Political Rights.89
More specifically, it recommended that Uzbekistan “should institute an
independent system of monitoring and checking all places of detention and penal
institutions on a regular basis, with the purpose of preventing torture and
other abuses of power by law enforcement officials”.90
The Committee has also stated that: “3. The protection against arbitrary
deprivation of life which is explicitly required by ... article 6(1) is of paramount
importance. The Committee considers that States parties should take measures
not only to prevent and punish deprivation of life by criminal acts, but also
to prevent arbitrary
killing by their own security forces. The deprivation of life by the authorities
of the State is a matter of the utmost gravity. Therefore, the law must strictly
control and limit the circumstances in which a person may be deprived of his
life by such authorities.”91 In the Committee’s
view, “States parties should also take specific and effective measures
to prevent the disappearance of individuals, something which unfortunately has
become all too frequent and leads too often to arbitrary deprivation of life.”92
Lastly, when the Committee concludes that a State party has violated its obligations
under the Covenant in a communication brought under the Optional Protocol to
the Covenant, it consistently informs the State party concerned that it is under
an obligation to prevent such violations from occurring in the future.93

3.3.2 The regional level

The notion of prevention was analysed in somewhat more detail by the Inter-American
Court of Human Rights in the Velásquez Rodríguez case, in which
it ruled
that a State party to the American Convention on Human Rights “has a legal
duty to take reasonable steps to prevent human rights violations and to use
the means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose
the appropriate punishment and to ensure the victim adequate compensation”.94
Importantly, the Court added that: “175. This duty to prevent includes
all those means of a legal, political,
administrative and cultural nature that promote the protection of human rights
and ensure that any violations are considered and treated as illegal acts, which,
as such, may lead to the punishment of those responsible and the obligation
to indemnify the victim for damages. It is not possible to make a detailed list
of all such measures, since they vary with the law and the conditions of each
State Party. Of course, while the State is obligated to prevent human rights
abuses, the existence of a particular violation does not, in itself, prove the
failure to take preventive measures. On the other hand, subjecting a person
to official, repressive bodies that practice torture and assassination with
impunity is itself a breach of the duty to prevent violations of the rights
to life and physical integrity of the person, even if
that particular person is not tortured or assassinated, or if those facts cannot
be proven in a concrete case.”95 In the Street Children
case, the Court also referred to the abovementioned statement by the Human Rights
Committee regarding protection against the arbitrary deprivation of life, emphasizing
“the particular gravity” of the case, which involved the abduction,
torture and killing of several children and which also violated the State’s
“obligation to adopt special measures of protection and assistance for
the children within its jurisdiction”.96 The use of
effective domestic remedies for purposes of prevention has also been underlined
by the Inter-American Court, in particular with regard to the writ of habeas
corpus, the aim of which “is not only to ensure respect for the right
to personal liberty and physical integrity, but also to prevent the persons’s
disappearance or the keeping of his whereabouts secret and, ultimately, to ensure
his right to life”.97

In the case of Kaya v. Turkey, which concerned the disappearance and subsequent
death following torture of the victim, the European Court of Human Rights made
the following finding with regard to Turkey’s obligations under article
1 of the European Convention on Human Rights, read in conjunction with the prohibition
of torture in article 3: “115. The obligation imposed on High Contracting
Parties under article 1... to secure to everyone within their jurisdiction the
rights and freedoms defined in the Convention, taken together with article 3,
requires States to take measures designed to ensure that individuals within
their jurisdiction
are not subjected to torture or inhuman or degrading treatment, including such
ill-treatment administered by private individuals ... State responsibility may
therefore be engaged where the framework of law fails to provide adequate protection
... or where the authorities fail to take reasonable steps to avoid a risk of
ill-treatment which they knew or ought to have known ... 116. The Court finds
that the authorities knew or ought to have known that Hasan Kaya was at risk
of targeting as he was suspected of giving assistance to wounded members of
the PKK. The failure to protect his life through specific measures and through
the general failings in the criminal law framework placed him in danger not
only of extra-judicial execution but also of ill-treatment from persons who
were unaccountable for their actions. It follows that the Government is responsible
for ill-treatment suffered by Hasan Kaya after his disappearance and prior to
his death.”98 An important conclusion of this judgment
is that the duty to prevent human rights violations comprises measures to protect
people from being tortured not only by State officials but also by private persons.
In simple terms, States must not put a person in a situation where he or she
runs the risk of being subjected to treatment contrary to article 3 of the Convention.

While the foregoing references and cases relating to the prevention of human
rights violations mainly concern particularly serious crimes such as torture,
abduction
and arbitrary deprivation of life, the obligation to prevent violations is equally
applicable to all basic rights and freedoms recognized by national and international
law. The duty to prevent violations of human rights is inherent in the legal
duty to ensure their effective protection. Preventive measures may be of a legal,
administrative, political, cultural, social, educational, remedial or other
nature, depending on the problem and the country involved. The duty to prevent
human rights violations entails a duty not to place a person in circumstances
where he or she is at risk of disappearing, being tortured or arbitrarily killed,
even if such illegal acts are committed by private individuals.

3.4 The duty to provide domestic remedies

As seen above, the legal duty to provide domestic remedies for alleged victims
is inherent in the general duty to provide effective human rights protection.
Practice has consistently and convincingly shown that, unless an individual
has an effective right to have recourse to independent and impartial courts
or administrative authorities at the national level for the purpose of remedying
an alleged human rights violation, the true enjoyment of human rights will remain
illusory. From the point of view of States, the existence of effective domestic
remedies has the advantage of allowing them to remedy a wrong, thus avoiding
international responsibility and a possible rebuke from an international monitoring
body. In this section, selected statements and decisions will provide a general
idea of
the importance that international monitoring bodies attach to the availability
of effective remedies for violations of human rights at the national level.

3.4.1 The universal level

At the universal level, the right to domestic remedies was first included in
article 8 of the Universal Declaration of Human Rights, which states that everyone
“has
the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law”.
It was also
incorporated in article 2(3) of the International Covenant on Civil and Political
Rights, pursuant to which each State party to the Covenant undertakes: “(a)
To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity; (b) To ensure
that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy; (c) To ensure that the competent
authorities shall enforce such remedies when granted.” It follows from
the clear terms of this provision that the remedies available must be effective
and that their enforcement must be ensured by the competent authorities. The
remedies may be, for instance, judicial or administrative, although a reading
of article 2(3)(b) in fine suggests that the drafters of the Covenant had a
preference for judicial remedies. It is noteworthy that, for the purpose of
complying with the exhaustion of domestic remedies rule laid down in article
5(2)(b) of the Optional Protocol to the Covenant, the Human Rights Committee
holds that an alleged victim is required to resort only to such remedies as
have “a reasonable prospect” of being “effective”. Moreover,
it is for the Government alleging the availability of remedies to prove their
effectiveness.99 Although remedies must be available for all
alleged violations of the rights
guaranteed by the Covenant, the need for available, effective, independent and
impartial remedies is particularly urgent for people deprived of their liberty.
The
Human Rights Committee has therefore emphasized the need for effective guarantees
and remedies for detained persons in respect of all acts prohibited by article
7 of the Covenant, namely torture and cruel, inhuman and degrading treatment
and punishment. In their periodic reports States parties should, for instance,
“indicate how their legal system effectively guarantees the immediate
termination of all the acts prohibited by article 7 as well as appropriate redress”.100
In the Committee’s view, the right to bring complaints against ill-treatment,
as prohibited by article 7, “must be recognized in the domestic law”
and the complaints
“must be investigated promptly and impartially by competent authorities
so as to make the remedy effective”.101 The reports
of States parties “should provide specific information on the remedies
available to victims of maltreatment and the procedure that complainants must
follow, and statistics on the number of complaints and how they have been dealt
with”.102 The Committee was “deeply concerned
at the reports of torture and excessive use of force” by law enforcement
officials in Venezuela, at the State party’s “apparent delay in
responding to such occurrences [and at] the absence of independent mechanisms
to investigate the reports in question. The right to recourse to the courts
is not a substitute for such mechanisms. The State party should establish an
independent
body empowered to receive and investigate all reports of excessive use of force
and other abuses of authority by the police and other security forces, to be
followed, where appropriate, by prosecution of those who appear to be responsible
for them.”103

The Committee also expressed concern in the case of Trinidad and Tobago “at
the lack of remedies under domestic legislation, including the Constitution,
for
victims of discrimination within the full ambit of articles 2.3 and 26 of the
Covenant. The State party should ensure that remedies are available for the
full range of
discriminatory situations falling within the protection given by those articles.”104
Article 13 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment requires each State party to ensure “that
any individual who alleges he has been subjected to torture in any territory
under its jurisdiction has the right to complain to, and to have his case promptly
and impartially examined by, its competent authorities. Steps shall be taken
to ensure that the complainant and witnesses are protected against all ill-treatment
or intimidation as a consequence of his complaint or any evidence given.”
The Committee against Torture recommended in this regard that China establish
a “comprehensive system ... to review, investigate and effectively deal
with complaints of maltreatment, by those in custody of every sort”.105
It also recommended that Jordan “further strengthen measures to protect
the right of detainees, especially their access to judges, lawyers and doctors
of their choice”.106 Access to the legal profession
is, of course, also essential in order to enable people in detention to vindicate
their rights. The Committee thus welcomed the establishment by the Panamanian
Public Prosecutor’s Department “of a ‘prison mailbox’
system to facilitate the exercise by prisoners of their right to lodge complaints
and petitions”.107

Article 6 of the International Convention on the Elimination of All Forms of
Racial Discrimination also imposes a duty on States parties to provide “effective
protection and remedies, through the competent national tribunals and other
State institutions, against any acts of racial discrimination which violate
[a person’s] human rights and fundamental freedoms contrary to this Convention”.
On this point, the Committee on the Elimination of Racial Discrimination recommended
that Sudan “continue its efforts to establish a domestic legal order giving
full effect to [articles 4, 5 and 6] of the Convention and to ensure effective
and equal access to remedies through the competent national tribunals and other
State institutions against any acts of racial discrimination and related tolerance”.108
With regard to article 6, it also recommended that France “reinforce the
effectiveness of the remedies available to victims of racial discrimination”.109
The same Committee has also begun to take into account “the gender-related
dimensions of racial discrimination”. In so doing, it will give “particular
consideration”, inter alia, to the “availability and accessibility
of remedies and complaint mechanisms for racial discrimination”.110

Under article 2(c) of the Convention on the Elimination of All Forms of Discrimination
against Women, the States parties undertake “to establish legal protection
of the rights of women on an equal basis with men and to ensure through competent
national tribunals and other public institutions the effective protection of
women against any act of discrimination”. The Committee on the Elimination
of Discrimination against Women urged Belarus “to create adequate remedies
for women
to obtain easy redress from direct or indirect discrimination especially in
the area of employment [and] to improve women’s access to such remedies,
including access to courts, by facilitating legal aid to women and embarking
on legal literacy campaigns”.111 The Committee also
recommended that Cameroon “provide access to legal remedies” for
women subjected to various forms of violence.112
*****
Lastly, it is interesting to note in this context that the question of effective
remedies for human rights violations was also dealt with in Part I, paragraph
27, of the
Vienna Declaration and Programme of Action, in which the participating States
agreed by consensus that: “Every State should provide an effective framework
of remedies to redress human rights grievances or violations. The administration
of justice, including law enforcement and prosecutorial agencies and, especially,
an
independent judiciary and legal profession in full conformity with applicable
standards contained in international human rights instruments, are essential
to the full and non-discriminatory realization of human rights and indispensable
to the processes of democracy and sustainable development.”113

3.4.2 The regional level

The right to a domestic remedy is, of course, also guaranteed by the regional
human rights treaties. Article 7(1)(a) of the African Charter on Human and Peoples’
Rights stipulates that every individual shall have “the right to an appeal
to competent national organs against acts violating his fundamental rights as
recognized and
guaranteed by conventions, laws, regulations and customs in force”. This
provision was violated, inter alia, in a case against Zambia, in which one of
the victims had been denied the opportunity to appeal his deportation order.
In the view of the African Commission on Human and Peoples’ Rights, this
deprivation of the right to a fair hearing violated both Zambian law and international
human rights law, including article 7(1)a) of the African Charter.114
The right to be heard, as guaranteed by article 7(1)(a), was also violated in
a case against Nigeria, in which the courts were prevented by a government decree
from entertaining any complaints concerning a number of decrees regarding, inter
alia, the proscription of newspapers. The African Commission on Human and Peoples’
Rights did not accept the Government’s argument that it was “in
the nature of military regimes” to provide for such “ouster clauses”
in order to avoid excessive litigation. According to the Commission: “A
government that governs truly in the best interest of the people ... should
have no fears of an independent judiciary. The judiciary and the
executive branch of government should be partners in the good ordering of society.
For a government to oust the jurisdiction of the courts on a broad scale reflects
a lack of confidence in the justifiability of its own actions, and a lack of
confidence in the courts to act in accordance with the public interest and rule
of law.”115
The Commission therefore decided that the ouster of the courts’ jurisdiction
violated the right to have one’s cause heard under article 7(1) of the
Charter.116

Article 25 of the American Convention on Human Rights on the right to judicial
protection reads as follows: “1. Everyone has the right to simple and
prompt recourse, or any other effective recourse, to a competent court or tribunal
for protection against acts that violate his fundamental rights recognized by
the constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the course
of their
official duties. 2. The States Parties undertake: (a) to ensure that any person
claiming such remedy shall have his rights determined by the competent authority
provided for by the legal system of the state; (b) to develop the possibilities
of judicial remedy; and (c) to ensure that the competent authorities shall enforce
such
remedies when granted.”

The Inter-American Court has stated that the right to judicial protection,
as guaranteed by article 25(1), “incorporates the principle recognized
in the international
law of human rights of the effectiveness of the procedural instruments or means
designed to guarantee such rights”.117 This means,
in particular, that: “Under the Convention, States Parties have an obligation
to provide effective judicial remedies to victims of human rights violations
(Art. 25), remedies that must be substantiated in accordance with the rules
of due process of law (Art. 8(1)), all in keeping with the general obligation
of such States to guarantee the free and full exercise of the rights recognized
by the Convention to all persons subject to their jurisdiction (Art. 1).”118
According to this principle, moreover, “the absence of an effective remedy
to violations of the rights recognized by the Convention is itself a violation
of the Convention by the State Party in which the remedy is lacking. In that
sense, it should be emphasized that, for such a remedy to exist, it is not sufficient
that it be provided for by the Constitution or by law or that it be formally
recognized, but rather that it must be truly effective in establishing whether
there has been a violation of human right and in providing redress. A remedy
which provides illusory because of the general conditions prevailing in the
country, or even in the particular circumstances of a given case, cannot be
considered effective.
That could be the case, for example, when practice has shown its ineffectiveness:
when the Judicial Power lacks the necessary independence to render impartial
decisions or the means to carry out its judgments; or in any other situation
that constitutes a denial of justice, as when there is an unjustified delay
in the decision; or when, for any reason, the alleged victim is denied access
to a judicial remedy.”119 In “normal circumstances”
these conclusions “are generally valid with respect
to all the rights recognized by the Convention”.120
For specific information regarding the requirement of effective domestic remedies
in public emergencies, see Chapter 16 of this Manual. Article 25 of the American
Convention has been interpreted by the Inter-American Court of Human Rights
in the case of Castillo-Páez v. Peru concerning the abduction and subsequent
disappearance of Mr. Castillo-Páez. The Court concluded “that the
remedy filed by Mr. Castillo-Páez’ next-of-kin against his detention
(habeas corpus) was obstructed by State agents through the adulteration of the
logs of entry of detainees, which made it impossible to locate the victim”.
It had therefore been proven “that the remedy of habeas corpus was ineffective
for securing the release of Ernesto Rafael Castillo-Páez and, perhaps,
for saving his life”.121 On this important issue the
Court added that: “82. ... The fact that the ineffectiveness of habeas
corpus was due to forced disappearance does not exclude the violation of article
25 of the American Convention. This provision on the right to effective recourse
to a competent national court or tribunal is one of the fundamental pillars
not only of the American Convention, but of the very rule of law in a democratic
society in the terms of the Convention. 83. Article 25 is closely linked to
the general obligation contained in article 1(1) of the American Convention,
in that it assigns duties of protection to the States Parties through their
domestic legislation. The purpose of habeas corpus is not only to guarantee
personal liberty and humane treatment, but also to prevent disappearance or
failure to determine the place of detention, and, ultimately, to ensure the
right to life.”122 In this case the Court found it
proven that Mr. Castillo-Páez had been detained by the members of the
Peruvian police force, who hid him so that he could not be located. The ineffectiveness
of the remedy of habeas corpus was therefore “imputable to the State”
and constituted a violation of article 25 of the Convention.123
However, where the relatives of a disappeared person failed to initiate a judicial
action to try to secure the freedom of the person concerned, the Court was unable
to find a violation of article 25, since the requirement for its application
had not been met.124

Quite importantly, article 7 of the Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against Women, also spells out
States parties’s duties to provide help and remedies for women subjected
to violence, for instance the establishment of “fair and effective legal
procedures for women who have been subjected to violence which include, among
others, protective measures, a timely hearing and effective access to such procedures”
(art. 7(f)). It further imposes an obligation on States parties to establish
“the necessary legal and administrative mechanisms to ensure that women
subjected to violence have effective access to restitution, reparations or other
just and effective remedies” (art. 7(g)).

Lastly, article 13 of the European Convention on Human Rights stipulates that:
“Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority notwithstanding
that the violation has been committed by persons acting in an official capacity.”

This article has been interpreted on numerous occasions and violations, particularly
with regard to protection of the right to life, have been found in an increasing
number of cases. An analysis of the jurisprudence of the European Court of Human
Rights shows that the following general principles are of relevance in the
interpretation of article 13 of the European Convention: First, as the Court
stated in the case of Boyle and Rice v. the United Kingdom, “notwithstanding
the terms of Article 13 read literally, the existence of an actual breach of
another provision of the Convention (a ‘substantive’ provision)
is not a prerequisite for the application of the Article [which] guarantees
the availability of a remedy at national level to enforce – and hence
to allege non-compliance with – the substance of
the Convention rights and freedoms in whatever form they may happen to be secured
in the domestic legal order.”125 Second, it follows
that “where an individual has an arguable claim to be the victim of a
violation of the rights set forth in the Convention, he should have a remedy
before a national authority in order both to have his claim decided and, if
appropriate, to obtain redress.”126 This means more
precisely that “the grievance must be an arguable one in terms of the
Convention”, and that a person cannot claim the benefit of the protection
of article 13 for “any supposed grievance under the Convention ... no
matter how unmeritorious his complaint may be”.127
Third, the Court has concluded that the authority referred to in article 13
“may not necessarily be a judicial authority but, if it is not, its powers
and the guarantees which it affords are relevant in determining whether the
remedy before it is effective”.128 Fourth, the Court
has held that “although no single remedy may itself entirely satisfy the
requirements of article 13, the aggregate of remedies provided for under domestic
law may do so.”129
Fifth, although “the scope of the obligation under article 13 varies depending
on the nature of the applicant’s complaints under the Convention”,
the remedy
required by that article “must be ‘effective’ in practice
as well as in law, in particular in the sense that its exercise must not be
unjustifiably hindered by the acts or omissions of the authorities of the respondent
State”.130 Sixth, neither article 13 nor the Convention
itself lays down the manner in which the Contracting States should ensure “within
their internal law the effective implementation of any of the provisions of
the Convention – for example, by incorporating the Convention into domestic
law”. It therefore follows that the application of article 13 in a given
case will depend upon the manner in which the Contracting State concerned has
chosen to discharge its obligation under article 1 directly to secure to everyone
within its jurisdiction the rights and freedoms set out in the Convention and
its Protocols.131 Lastly, it follows from the preceding principle
that article 13 does not guarantee “a remedy allowing a Contracting State’s
law as such to be challenged before a national authority on the ground of being
contrary to the Convention or equivalent domestic legal norms”.132
However, the question of remedies may be examined not only within the framework
of article 13 of the Convention but also under other articles, such as articles
6 and 8. If, for instance, the Court has found a violation of article 6(1) as
a consequence of lack of access to the courts, it will not, in principle, find
it necessary to examine the matter also under article 13, since “the requirements
of that provision are less strict than, and are ... absorbed by, those of Article
6, para. 1".133 In the case of X and Y v. the
Netherlands, the Court likewise did not consider it necessary to examine the
question of remedies under article 13, since it had already concluded that article
8 of the Convention had been violated, inter alia, by the fact that no “adequate
means of obtaining a remedy” was available to one of the applicants.134
Conversely, if the requirements under other articles, such as article 2, are
less strict than article 13, the Court will pursue its examination of grievances
also under the latter article. For instance, it found a violation of article
13 after concluding that the lack of an effective investigation into the death
of a person constituted a violation of article
2 of the Convention.135 The reason was that the requirements
of article 13 “are broader than the obligation to investigate” imposed
by article 2.136 In this case the Court stated that: “Given
the fundamental importance of the right to protection of life, Article 13 requires,
in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of leading to the
identification and punishment of those responsible for the deprivation of life
and including effective access for the complainant to the investigation procedure.”137
As such an effective investigation was not conducted into the circumstances
of the death of the applicant’s brother, the applicant had no effective
remedy in respect of his brother’s death as required by article 13, which
had therefore been violated.138 The legal duty under international
law to provide effective human rights protection comprises the obligation to
ensure that effective domestic remedies are available to victims of human rights
violations. This means that it is not sufficient for a remedy to be available
under a country’s constitution or other legislation. It must exist in
practice and be allowed to function freely. To be able to provide effective
remedies, the authorities concerned, including the courts and the legal professions
in general, must therefore be competent, independent and impartial. States should
endeavour to develop judicial remedies for alleged violations of human rights.
In order to be effective, the exercise of a remedy must not be hindered by acts
or omissions of the State concerned. While effective remedies must exist for
all violations of human rights, their prompt and unhindered exercise is particularly
important in the case of grievances suffered by persons deprived of their liberty,
whose life and personal health and security must be protected at all times.
To deprive a detained person of his or her right to bring complaints regarding,
for example, unlawful deprivation of liberty or torture or other forms of ill-treatment
amounts to placing the person concerned in a legal vacuum where he or she has
no possibility of redress. Such a situation is a manifest violation of a State’s
legal obligations under international human rights law. Effective domestic remedies
must also be ensured for complaints of discrimination such as alleged racial
and gender-based discrimination, including acts of violence arising either in
the domestic or in the public sphere. It is the professional responsibility
of all judges, prosecutors and lawyers to ensure that claims of human rights
violations are addressed effectively
and with due diligence.

3.5 The duty to investigate, prosecute and punish

As previously noted, the duty to investigate, prosecute and punish human rights
violations is also inherent in States’ general responsibility to ensure
effective
human rights protection and it is a duty that has been consistently emphasized
by the international monitoring bodies. As this duty is not always expressly
defined in the treaties concerned, it will be analysed below principally in
the light of a selection of the many comments and judgments of these bodies
that invoke the obligation to investigate, prosecute and punish violations of
the rights and freedoms of the individual.

3.5.1 The universal level

In General Comment No. 20 on article 7 of the International Covenant on Civil
and Political Rights, the Committee noted, in general, “that it is not
sufficient for
the implementation of article 7 to prohibit such treatment or to make it a crime.
States parties should inform the Committee of the legislative, administrative,
judicial and other measures that they take to prevent and punish acts of torture
and cruel, inhuman and degrading treatment in any territory under their jurisdiction.”139
In the Chongwe case, a Zambian police officer had shot “and barely missed
killing” the author who was not formally deprived of his liberty. According
to the
Human Rights Committee, the State party “refused to carry out independent
investigations, and the investigations initiated by the Zambian police [had]
still not been
concluded and made public, more than three years after the incident”.140
Furthermore, no criminal proceedings had been initiated and the author’s
claim for compensation appeared to have been rejected. The author’s right
to security under article 9(1) of the Covenant had therefore been violated.141
With regard to Zambia’s obligations under article 2(3)(a) of the Covenant,
the Committee concluded that: “the State party is under the obligation
to provide Mr Chongwe with an
effective remedy and to take adequate measures to protect his personal security
and life from threats of any kind. The Committee urges the State party to carry
out independent investigations of the shooting incident, and to expedite criminal
proceedings against the persons responsible for the shooting. If the outcome
of the criminal proceedings reveals that persons acting in an official capacity
were responsible for the shooting and hurting of the author, the remedy should
include damages to Mr Chongwe. The State party is under an obligation to ensure
that similar violations do not occur in the future.”142
The Human Rights Committee also expressed concern “at the lack of action”
by Venezuela to deal with disappearances that occurred in 1989, noting that
the statement to the effect that investigations of the disappearances were “being
pursued” was unsatisfactory.143 “Taking into
account the provisions of articles 6, 7 and 9 of the Covenant, the State party
should give special priority to rapid and effective investigations designed
to determine the whereabouts of the disappeared persons and those responsible
for disappearances. The State party should also take all necessary measures
to prevent disappearances, including adoption of the legislation described in
article 45 of the Constitution.”144 The Committee was
also “gravely concerned at the many reports of extrajudicial executions”
in Venezuela and the failure of the State party
to deal with them. “The State party should conduct investigations to identify
those responsible for extrajudicial executions and bring them to justice. It
should also take the necessary measures to prevent the occurrence of such violations
of article 6 of the Covenant.”145 Similarly, the Committee
expressed concern about reports of extrajudicial executions of prisoners in
the Dominican Republic “and of deaths at the hands of the National Police,
the Armed Forces and the National Drug Control Office owing to the excessive
use of force and the apparent impunity that they enjoy”. The State party
should therefore “take urgent steps to ensure respect for article 6 of
the Covenant, to have those responsible for violations of the right to life
guaranteed thereunder prosecuted and punished, and to make redress”.146
The Committee also noted with concern that torture was widespread in the Dominican
Republic and that “no independent body exists to investigate the many
complaints of torture and cruel, inhuman or degrading treatment . . . The State
party should take prompt action to comply fully with article 7 of the Covenant
and to have violations thereof investigated so that the culprits may be tried
and punished by ordinary courts and redress provided.”147
Commenting on the Amnesty Law passed in Argentina to grant immunity for human
rights violations committed during the military regime, the Committee recommended
that gross violations of civil and political rights during that regime “should
be prosecutable for as long as necessary, with applicability as far back in
time as necessary, to bring to justice their perpetrators” (see further
infra subsection 3.7.1).148

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment contains specifically defined State obligations relating to the
penalization of acts of torture and to investigations and complaints procedures.
Pursuant to article 4(1) of the Convention, States parties are required to ensure
that all acts of torture, attempts to commit torture, as well as complicity
or participation in torture, are offences under their criminal law. Article
4(2) stipulates that the States parties “shall make these offences punishable
by appropriate penalties which take into account their grave nature”.
And article 12 of the Convention states that: “Each State Party shall
ensure that its competent authorities proceed to a prompt and impartial investigation,
wherever there is reasonable ground to believe that an act of torture has been
committed in any territory under its jurisdiction.” Lastly, as already
noted supra in subsection 3.4.1, article 13 obliges States
parties to provide victims of torture with the right to bring complaints and
to have their cases “promptly and impartially” examined by the competent
authorities.

In connection with its examination of the third periodic report of Belarus,
the Committee against Torture expressed concern about the “pattern of
failure of officials
to conduct prompt, impartial and full investigations into the many allegations
of torture reported to the authorities, as well as a failure to prosecute alleged
perpetrators, which are not in conformity with articles 12 and 13 of the Convention”.149
The Committee therefore recommended that:
_ “Urgent and effective steps be taken to establish a fully independent
complaints mechanism, to ensure prompt, impartial and full investigations into
the many
allegations of torture reported to the authorities and the prosecution and punishment,
as appropriate, of the alleged perpetrators”;
_ “The State party consider establishing an independent and impartial
governmental and non-governmental national human rights commission with effective
powers to, inter alia, promote human rights and investigate all complaints of
human rights violations, in particular those pertaining to the implementation
of the Convention.”150
Another of the many similar examples from the proceedings of the Committee against
Torture relates to Guatemala, in respect of which the Committee expressed concern
at “the continuing existence of impunity for offences in general and for
human rights violations in particular, as a result of repeated dereliction of
duty by
the government bodies responsible for preventing, investigating and punishing
such offences”. It also expressed concern about the “lack of an
independent commission with wide powers and extensive resources to investigate
the circumstances of the kidnapping of disappeared persons on a case-by-case
basis and to locate their remains. Uncertainty about these circumstances causes
the families of disappeared persons serious and continuous suffering.”151
The Committee recommended that: “An independent commission should be established
to investigate the circumstances of the kidnapping of disappeared persons and
to determine
what happened to them and where their remains are located. The Government has
an obligation to spare no effort to find out what really happened in such cases
and thus give effect to the legitimate right of the families concerned, provide
compensation for the loss or injury caused and prosecute the persons responsible.”152
Lastly, when examining the initial report of Bolivia, the Committee recommended
that the Government adopt “the necessary measures to ensure effective
compliance by government procurators with their duty to conduct criminal investigations
into any complaint of torture and cruel, inhuman or degrading treatment
in a prompt and impartial manner; during these investigations, the accused officials
should be suspended from their duties.”153 It was recommended
that the State party “set up a centralized public register of complaints
of torture and ill-treatment and of the results of the investigations”.154

Article 2(b) and (c) of the Convention on the Elimination of All Forms of Discrimination
against Women requires the States parties “to adopt appropriate legislative
and other measures, including sanctions where appropriate, prohibiting all discrimination
against women” and “to establish legal protection of the rights
of women on an equal basis with men and to ensure through competent national
tribunals and other public institutions the effective protection of women against
any act of
discrimination”. Although these provisions are applicable to all forms
of gender-based discrimination, they assume special importance in the case of
all forms of violence against and abuse of women. On this issue the Committee
on the Elimination of Discrimination against Women recommends that the States
parties to the Convention take “Effective legal measures, including penal
sanctions, civil remedies compensatory provisions to protect women against all
kinds of violence,
including, inter alia, violence and abuse in the family, sexual assault and
sexual harassment in the workplace”.155 Commenting
on the situation in the Republic of Moldova, the Committee emphasized that violence
against women, “including domestic violence, constitutes a violation of
the human rights of women under the Convention”. It called on the Government
“to ensure that such violence constitutes a crime punishable under criminal
law, that it is prosecuted and punished with the required severity and speed”.156
It urged Uzbekistan to ensure that women and girls who are victims of violence,
including domestic violence, “have immediate means of redress and protection”.157

3.5.2 The regional level

The Inter-American Court of Human Rights held in the Street Children case that
it is clear from article 1(1) of the American Convention on Human Rights “that
the
State is obliged to investigate and punish any violation of the rights embodied
in the Convention in order to guarantee such rights”.158
In the earlier Velásquez Rodríguez case, the Court had set forth
at some length its views on States parties’ duty to investigate human
rights violations, which in that case involved the abduction and subsequent
disappearance of Mr. Velásquez. The Court held that: “176. The
State is obligated to investigate every situation involving a violation of the
rights protected by the Convention. If the State apparatus acts in such a way
that the violation goes unpunished and the victims’ full enjoyment of
such rights is not restored as soon as possible, the State has failed to comply
with its duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction. The same is true when the State allows private persons
or groups to act freely and with impunity to the detriment of the rights recognized
by the Convention.
177. In certain circumstances, it may be difficult to investigate acts that
violate an individual’s rights. The duty to investigate, like the duty
to prevent, is not breached merely because the investigation does not produce
a satisfactory result. Nevertheless, it must be undertaken in a serious manner
and not as amere formality preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its own legal duty, not as
a step taken by private interests that depends upon the initiative of the victim
or his family or upon their offer of proof, without an effective search for
the truth by the government. This is true regardless of what agent is eventually
found responsible for the violation. Where the acts of private parties that
violate the Convention are not seriously investigated, those parties are aided
in a sense by the government, thereby making the State responsible on the international
plane.”159 In the same case, the Court concluded that
the procedures available in Honduras were “theoretically adequate”
but that the evidence showed “a complete inability” of the procedures
to carry out an investigation into the disappearance of Manfredo Velásquez
and to fulfil the State’s duty to pay compensation and punish those responsible,
as set out in article 1(1) of the Convention.160 For instance,
the courts did not process one single writ of habeas corpus, no judge had access
to the places of detention where Mr. Velásquez might have been held,
and the criminal complaint was dismissed.161 The Court also
pointed out that “the duty to investigate facts of this type
continues as long as there is uncertainty about the fate of the person who has
disappeared”.162

In the Velásquez case, the Court unanimously decided that Honduras had
violated articles 4, 5 and 7 read in conjunction with article 1(1) of the Convention.163
Although a Government may conduct various judicial proceedings relating to the
facts, it may still be in violation of its duty under article 1(1) of the American
Convention to investigate crime. This was the situation in the Street Children
case, in which the persons responsible for the abduction and killing of the
children had not been punished because they had “not been identified or
penalized by judicial decisions that [had] been executed”. This consideration
alone was sufficient for the Court to conclude that Guatemala had violated article
1(1) of the Convention.164

The duty to investigate, prosecute and punish human rights violations is, of
course, equally valid for the Contracting States to the European Convention
on Human
Rights. In numerous cases, for example, the European Court of Human Rights has
emphasized the obligation to investigate in relation to the right to life. Its
jurisprudence on this important issue was well summarized in the Avsar case,
in which it held: “393. The obligation to protect the right to life under
article 2 of the
Convention, read in conjunction with the State’s general duty under article
1 of the Convention to ‘secure to everyone within (its) jurisdiction the
rights and freedoms defined in (the) Convention’, also requires by implication
that there should be some form of effective official investigation when individuals
have been killed as a result of the use of force ... The essential purpose of
such investigation is to secure the effective implementation of the domestic
laws which protect the right to life and, in those cases involving state agents
and bodies, to ensure their accountability for deaths occurring under their
responsibility. What form of investigation will achieve those purposes may vary
in different circumstances. However, whatever mode is employed, the authorities
must act of their own motion, once the matter has come to their attention. They
cannot leave it to the initiative of the next of kin either to lodge formal
complaint or to take responsibility for the conduct of any investigatory procedures
... 394. For an investigation into alleged unlawful killing by state agents
to be effective, it may generally be regarded as necessary for the persons responsible
for and carrying out the investigation to be independent from those implicated
in the events ... The investigation must also be effective in the sense that
it is capable of leading to a determination of whether the force used in such
cases was or was not justified in the circumstances ... and
to the identification and punishment of those responsible ... This is not an
obligation of result, but of means. The authorities must have taken the reasonable
steps available to them to secure the evidence concerning the incident, including
inter alia eye witness testimony, forensic evidence, and where appropriate,
an autopsy which provides a complete and accurate record of injury and an objective
analysis of clinical findings, including the cause of death ... Any deficiency
in the investigation which undermines its ability to establish the cause of
death or the person responsible will risk falling foul of this standard. 395.
There must also be a requirement of promptness and reasonable expedition implicit
in this context ... It must be accepted that there may be obstacles or difficulties
which prevent progress in an investigation in a particular situation. However,
a prompt response by the authorities in investigating a use of lethal force
may generally be regarded as essential in maintaining public confidence in their
maintenance of the rule of law and in preventing any appearance of collusion
in or tolerance of unlawful
acts.”165 Moreover, as pointed out by the Court in
the Avsar case, in which unlawful killings were allegedly “carried out
under the auspices of the security forces with the knowledge and acquiescence
of the State authorities”, the situation raised “serious concerns
about the State’s compliance with the rule of law and its respect in particular
for the right to life”. It followed that, in such circumstances, the procedural
obligation under article 2 of the European Convention with regard to the right
to life “must be regarded as requiring a wider examination”.166
In this case, the victim had been taken from his house by seven persons, namely
village guards,MM(the person who confessed) and one security guard. He was taken
to the gendarmerie from where he was later removed and killed. The Court
concluded that article 2 of the Convention had been violated because “the
investigation by the gendarmes, public prosecutor and before the criminal court
did not provide a prompt or adequate investigation of the circumstances surrounding
the killing of Mehmet Serif Avsat”. There had therefore been a “breach
of the State’s procedural obligation to protect the right to life”.167
The Court concluded, moreover, that the Government was responsible for Mr. Avsat’s
death, a finding that resulted in a violation of its substantive obligation
to ensure the right to life under article 2 of the European Convention.168
It is noteworthy that the village guards and the confessor were prosecuted and
convicted in this case but not the seventh person, the security official. These
circumstances “rendered recourse to civil remedies ... ineffective in
the circumstances [and] did not provide sufficient redress for the applicant’s
complaints concerning the authorities’ responsibility for his brother’s
death”. He could therefore continue to claim to be a victim of a violation
of article 2 on behalf of his brother.169

3.5.3 The role of victims during investigations and court proceedings

The role of victims or their next-of-kin is essential during investigations
into, and court proceedings regarding, human rights violations, and is of course
particularly
important in inquiries into killings, torture and other forms of violence, including
gender-based violence, whether committed by private persons or State officials.
Judges, prosecutors and lawyers must therefore at all times ensure that the
affected persons are heard at all appropriate times during the investigations,
as well as in connection with any ensuing court proceedings. They must also
be particularly sensitive and understanding in cases concerning, for instance,
disappearances. The trauma felt by the family members of disappeared persons
is profound. Their anguish at not knowing the fate of their beloved ones is
deep and has a marked and lasting impact on their lives. The legal professions
should therefore show courtesy and understanding for the feelings and reactions
of persons facing such human tragedy and their need to know what happened to
their disappeared family members. In the Street Children case, the Inter-American
Court of Human Rights
emphasized with regard to the duty to investigate that “it is evident
from article 8 of the (American) Convention (on Human Rights) that the victims
of human rights violations or their next of kin should have substantial possibilities
of being heard and acting in the respective proceedings, both in order to clarify
the facts and punish those responsible, and to seek due reparation.”170
Failure to process private denunciations, writs of habeas corupus or civil and
other claims, and failure to initiate investigations into alleged human rights
violations and, whenever appropriate, to bring criminal or other proceedings
against those responsible for them clearly make it impossible for the victims
or their next-of-kin “to be heard and to have their accusations discussed
by an independent and impartial tribunal”.171 Such
failure undermines not only the victim’s right to an effective remedy
but also the confidence that individuals and the public at large should have
in their
justice system and in the rule of law in general. Inherent in the general duty
to provide effective protection for human rights is the specific legal duty
to investigate, prosecute and punish violations of the individual’s fundamental
rights and freedoms. The ultimate purpose of this duty is to ensure the swift
restoration of the
victim’s rights and freedoms To fulfil their duty, States must conduct
prompt and effective investigations into all alleged violations of human rights.
This duty is of
particular importance when the allegations concern the right to life and the
right not to be subjected to torture or other forms of ill-treatment, including
gender-based violence as well as violence originating in other forms of discrimination.
The duty to investigate is one of means and not of ends and it implies inter
alia that:
_ the investigation must be carried out by an independent body, namely by a
body other than that implicated in the alleged violations;
_ the investigation must be carried out impartially, speedily, fully and effectively
so as to facilitate the identification of the person or persons responsible
for the alleged human rights violations for the purpose of their subsequent
prosecution and eventual punishment;
_ the investigation must be initiated by the State once it has knowledge of
the alleged facts, and it does not therefore depend on steps taken, or proof
tendered, by the victim or his or her next-of-kin;
_ formal investigations not intended to establish the truth fall foul of the
duty to investigate human rights violations effectively;
_ examples of steps necessary to ensure the effective investigation of alleged
arbitrary killings are the taking of eyewitness testimony and forensic evidence
and an autopsy involving an objective analysis of the clinical findings, including
the cause of death;
_ in the case of grave human rights violations, such as disappearances, the
duty to investigate and prosecute lasts for as long as it takes to dispel uncertainty
about what happened to the victims.
The victim of human rights violations or his or her next-of-kin plays an essential
role in investigations and during court proceedings relating to the violation
concerned. He or she should have ample opportunity to be heard and to play an
active part in the criminal justice process. Judges, prosecutors and lawyers
must show courtesy to and understanding for victims of human rights violations
and must be particularly sensitive to the trauma caused by disappearances and
other serious human rights abuses. The failure to investigate human rights violations
promptly and effectively jeopardizes the victim’s right to redress for
his or her grievances and undermines the rule of law, including public confidence
in the rule of law.

3.6 The duty to provide redress for human rights violations

3.6.1 Restitution and compensation

In most cases, the international human rights treaties do not specify how a
breach of a legal obligation should be remedied. In a sense, this is logical
inasmuch as
the States parties to a human rights treaty are free to decide how to enforce
the rights and freedoms concerned. However, article 14(1) of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
specifies that States parties have a duty to ensure that victims of torture
obtain redress and that they have “an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as possible”.
In the event of the death of the victim as a result of the torture, his or her
dependants “shall be entitled to compensation”. As previously noted,
article 7 of the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women also imposes a duty on States parties
to establish, inter alia, “the necessary legal and administrative mechanisms
to ensure that women subjected to violence have effective access to restitution,
reparations or other just and effective remedies”.

As in the case of victims of ordinary crime, victims of human rights violations
should, to the extent possible, have their rights restituted. In the Blazek
case, which
concerned the confiscation of property in the Czech Republic, the Human Rights
Committee expressed the view that, pursuant to article 2(3)(a) of the International
Covenant on Civil and Political Rights, the State party was “under an
obligation to provide the authors with an effective remedy, including an opportunity
to file a new claim for restitution or compensation” for an act of discrimination
contrary to article 26 of the Covenant.172 In this case,
which concerned property, restitution may thus be possible. However, as made
abundantly clear in the present chapter, this is often not the case, especially
where the persons concerned have been killed or subjected to violence and the
options are limited, by and large, to compensation and rehabilitation. The examples
selected below will illustrate how the regional human rights courts deal with
the question of compensation. However, it should be pointed out that the obligation
to indemnify is derived in these cases from an international obligation linked
to a proven violation of an international human rights treaty and is thus not
based in national law.173 On the other hand, the judgments
concerned help to clarify the kinds of damage that may be compensated, although
the actual compensation will always depend on the facts of the case.
The European Court of Human Rights has regularly awarded compensation, inter
alia to victims of torture and to the next-of-kin of victims of killings. Depending
on the circumstances, compensation may be granted for pecuniary damage and also
for non-pecuniary or moral damage which cannot be considered to be compensated
by the sole findings of the international monitoring body concerned.174
Such compensation may be granted not only to the victim himself or herself but
also to the victim’s next-of-kin.175 Compensation for
costs and expenses may also be awarded.176 However, in a
case in which the next-of-kin was not dependent on his brother’s earnings
prior to his death and the claims related to alleged losses incurred subsequent
to his death, the Court did not “find it appropriate” to award compensation
for pecuniary damages.177

At the American level, the question of what would constitute “fair compensation”
to Mr. Velásquez’s next-of-kin arose in the Velásquez Rodríquez
case.
The Inter-American Court concluded that, since the disappearance of Mr. Velásquez
was not an accidental death but “the result of serious acts imputable
to Honduras”, the amount of compensation could not “be based upon
guidelines such as life insurance, but must be calculated as a loss of earnings
based upon the income the victim would have received up to the time of his possible
natural death”.178 However, the Court distinguished
between two situations: on the one hand, the situation of a victim who was “totally
and permanently disabled”, in which case “the compensation should
include all he failed to receive, together with appropriate adjustments based
upon his probable life expectancy”,179 and, on the
other, a situation in which the beneficiaries are family members who have, in
principle, “an actual or future possibility of working or receiving income
on their own”.180 In the latter situation it would
not be correct “to adhere to rigid criteria ... but rather to arrive at
a prudent estimate of the damages, given the circumstances of the case”.181
On the question of indemnification of the moral damages suffered by Mr. Velásquez’s
family members, the Court found that these damages were “primarily the
result of the psychological impact suffered by the family”, especially
as a result of “the dramatic characteristics of the involuntary disappearance
of persons”.182 The moral damages were demonstrated
by “expert documentary evidence” and the testimony of a psychiatrist
and professor of psychology. On that basis, the Court found that the disappearance
of Mr. Velásquez “produced harmful psychological impacts among
his immediate family which should be indemnified as moral damages”.183
The Government was therefore ordered to pay compensation.

As the status of the universal monitoring bodies is not strictly judicial, they
have no competence, as such, to award compensation for damages. In the Views
it
adopts under the Optional Protocol to the International Covenant on Civil and
Political Rights, the Human Rights Committee is therefore limited to urging
Governments responsible for human rights violations, in general terms, to pay
compensation for the wrongs suffered without specifying the amount to be paid.184

3.6.2 Rehabilitation

In many cases, such as when a person has been the victim of torture or other
forms of ill-treatment or gender-based violence, there may be a need, in addition
to
financial compensation, for rehabilitative measures of both a physical and psychological
nature. As noted in the preceding subsection, article 14(1) of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment explicitly imposes a duty on States parties to provide redress for
torture victims “including the means for as full rehabilitation as possible”.
The Committee against Torture expressed concern, with regard to Cameroon, at
the “absence of legislative provisions for the compensation and rehabilitation
of victims of torture, contrary to the provisions of article 14 of the Convention”.
It therefore recommended that the State party introduce “a mechanism into
its legislation for the fullest possible compensation and rehabilitation of
the victims of torture”.185 The Committee also recommended,
with regard to Brazil, that measures should be taken “to regulate and
institutionalize the right of victims of torture to fair and adequate compensation
payable by the State, and to establish programmes for their fullest possible
physical and mental rehabilitation”.186 Rehabilitation
for victims of abuse is also foreseen by article 39 of the Convention on the
Rights of the Child, according to which “States Parties shall take all
appropriate measures to promote physical and psychological recovery and social
integration of a child victim of: any form of neglect, exploitation, or abuse;
torture or any other form of cruel, inhuman or degrading treatment or punishment;
or armed conflicts. Such recovery and reintegration shall take place in an environment
which fosters
the health, self-respect and dignity of the child.” On the basis of this
article, the Committee on the Rights of the Child recommended that the former
Yugoslav Republic of Macedonia “urgently establish appropriate programmes
to provide for the physical and psychological recovery and reintegration”
of children who have been victims of crime.187 The Committee
emphasized that rehabilitative measures for children are particularly important
in times of war.188 Women who have been subjected to trafficking
constitute another group of victims of human rights violations who may need
rehabilitation. The Human Rights Committee recommended that Venezuela should
set up rehabilitation programmes for victims of trafficking.189
The Committee on the Elimination of Discrimination against
Women has also recommended that States take “protective measures, including
refuges, counselling, rehabilitation and support services for women who are
the victims of violence or who are at risk of violence”.190

At the regional level, the need for rehabilitative measures for women subjected
to violence is recognized in article 8 of the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women, under which
the States Parties “agree to undertake progressively specific measures
... to provide women who are subjected to violence access to effective readjustment
and training programmes to enable them to fully participate in public, private
and social life”. Victims of human rights violations, or their next-of-kin,
have the right to effective redress for wrongs committed. Wherever possible,
such redress should be in the form of restitution of rights. If restitution
is not possible, fair compensation for pecuniary and/or moral damages must be
awarded. Redress in the form of rehabilitation should be envisaged, when necessary,
for victims of violence, such as torture or other forms of ill-treatment or
racial, gender-based or other forms of discrimination.

3.7 The problem of impunity for human rights violations

3.7.1 Impunity from a legal perspective

Impunity for human rights violations is one of the most serious threats to the
full enjoyment of the rights and freedoms of the individual, and constitutes
a violation
of a State’s legal duty to ensure the effective protection of these rights
and freedoms. Non-prosecution of criminal acts such as torture, abduction, disappearances
and the arbitrary taking of human life have a particularly devastating impact
on the victims and their next-of-kin, as well as on society as a whole. A culture
of impunity also “widens a gap between those close to the power structures
and others, who are vulnerable to human rights abuses. The increasing difficulties
in securing justice drive people to take the law into their own hands, resulting
in a further deterioration of the justice system and new outbursts of violence.”191
Impunity for human rights violations can exist in any country, but it is particularly
common where amnesty laws are adopted in the aftermath of military or civilian
dictatorships or internal armed conflicts, such laws being an allegedly indispensable
element in the process of national reconciliation. The international monitoring
bodies have consistently denounced impunity for serious human rights violations.
In the Rodríguez case, for instance, the Human Rights Committee concluded
that the 1986 Uruguay law No. 15,848, the Limitations Act or Law of Expiry (Ley
de Caducidad de la Pretensión Punitiva del Estado) violated article 7
read in conjunction with article 2(3) of the International Covenant on Civil
and Political Rights. This law, which was adopted in 1986, ended the possibility
of bringing
judicial proceedings against the State for alleged human rights violations during
the years of military rule. The author of the communication had been detained
and tortured in 1983 during the military dictatorship but, owing to the amnesty
law, was unable to sue the State for compensation. In its Views, the Committee
reaffirmed its position “that amnesties for gross violations of human
rights and legislation such as No. 15,848, Ley de Caducidad de la Pretensión
Punitiva del Estado, are incompatible with the obligations of the State party
under the Covenant. The Committee notes with deep concern that the adoption
of this law
effectively excludes in a number of cases the possibility of investigation into
past human rights abuses and thereby prevents the State party from discharging
its responsibility to provide effective remedies to the victims of those abuses.
Moreover, the Committee is concerned that, in adopting this law, the State party
has contributed to an atmosphere of impunity which may undermine the democratic
order and give rise to further grave human rights violations.”192
With regard to Argentina, the Committee expressed concern “at the atmosphere
of impunity for those responsible for gross human rights violations under military
rule”. Noting that many persons covered by the Argentine amnesty laws
continued “to serve in the military or in public office, with some having
enjoyed promotions on the ensuing years”, the Committee recommended that:
“Gross violations of civil and political rights during military rule should
be prosecutable for as long as necessary, with applicability as far back in
time as necessary, to bring to justice their perpetrators. The Committee recommends
that rigorous efforts continue to be made in this area, and that measures be
taken to ensure that persons involved in gross human rights violations are removed
from military or public service”.193 The Committee
also expressed concern about the Croatian Amnesty Law. Although this law does
not grant amnesty to those guilty of war crimes, it fails to define such crimes.
The Committee therefore recommended that the State party “should ensure
that in practice the Amnesty Law is not applied or utilized for granting impunity
to persons accused of serious human rights violations”.194

The Committee against Torture expressed concern about the continuing existence
in Guatemala “of impunity for offences in general and for human rights
violations in particular, as a result of repeated dereliction of duty by the
government bodies responsible for preventing, investigating and punishing such
offences. Impunity exists for most of the violations committed during the internal
armed conflict and those committed after the Peace Agreements were signed.”195
In order to improve the situation, the Committee made various recommendations
to the State party involving, inter alia, the strengthening of the autonomy
and independence of the judiciary and the Public Prosecutor’s Office and
the prohibition of involvement of the army in public security and crime prevention.196
The Committee on the Elimination of Racial Discrimination noted the efforts
made by Rwanda “to prevent impunity for perpetrators of genocide and other
human rights violations and to bring those most responsible for such acts to
justice”. The Committee remained concerned, however, that impunity prevailed
in the country “notably in some cases involving unlawful acts committed
by members of the security forces”. It therefore urged the State party
“to make additional efforts to respond adequately to and prevent unlawful
acts committed by members of the military or civilian authorities”.197

It is further clear from regional jurisprudence that impunity cannot be allowed
for human rights violations committed by private persons. The duty of States
to investigate, prosecute, punish and redress human rights violations also extends
to violations committed by private persons, at least whenever the Government
concerned knew or should have known about the unlawful acts. The Inter-American
Court of Human Rights has thus made it clear that a State party to the American
Convention on Human Rights “is obligated to investigate every situation
involving a violation of the rights protected by the Convention” and that,
when it does not do so, “the State has failed to comply with its duty
to ensure the free and full exercise of those rights to the persons within its
jurisdiction”. In the Court’s
view, “The same is true when the State allows private persons or groups
to act freely and with impunity to the detriment of the rights recognized by
the Convention.”198 The abovementioned case of Mahmut
Kaya v. Turkey shows that the European Court of Human Rights may hold Governments
responsible for human rights violations committed by private persons, at least
to the extent that the authorities were aware of such acts or “ought to
have been aware of the possibility” that such acts might be carried out
by persons or groups of persons “acting with the knowledge or acquiescence
of elements in the security forces”.199

As may be seen from these selected cases and statements, impunity for serious
violations of human rights such as arbitrary killings, abduction, disappearances,
torture and other forms of inhuman treatment is strictly illegal under international
human rights law. This chapter has made it clear that States have a legal duty
effectively to ensure the protection of everyone’s human rights including,
in particular, the right to life and liberty and to security. States that fail
to comply with this duty at the domestic level may have to assume international
responsibility before the international monitoring bodies.

3.7.2 Justice, impunity and reconciliation

As noted above, the question of impunity for perpetrators of human rights violations
is frequently a subject of intense debate when a country is emerging from a
period of oppression or armed conflict and wants to move into an era of peace,
security and democracy. In these circumstances, victims of human rights violations,
war crimes and crimes against humanity yearn for recognition of their hardship
and for ultimate justice for the wrongs committed. In particular, many victims
whose close family members disappeared and/or were arbitrarily deprived of their
life would have strong and persistent feelings of anxiety and a need to know
the truth about what happened to their loved ones. On the other hand, perpetrators
of human rights violations and other wrongs generally insist on obtaining amnesty
or pardon for the acts committed. But in the midst of these apparent tensions,
society needs to find a modus vivendi in order to move forward for the good
of all.
This is not the place to seek to resolve the many and often very complex issues
of guilt, admission of guilt, chastisement, reparation, rehabilitation and reconciliation
that arise in such situations. It may, however, be said in the light of this
chapter that, as a bare minimum, amnesties and pardons cannot in any circumstances
be granted for violations of the right to life and the right to liberty and
security of the person, including the right to freedom from torture and other
forms of ill-treatment. As will be shown in the next chapter, these are some
of the rights that cannot be derogated from in any circumstances, not even in
times of public emergency. The principle of justice for everyone demands that
victims’ rights and sufferings be recognized and remedied, that the perpetrators
be punished and that the States involved act effectively to prevent similar
acts from occurring in the future. A society is unlikely to be able to heal
its wounds and raise itself from the ruins of oppression in a constructive way
unless these minimum legal requirements that derive from human dignity are effectively
met. In other words, although some form of national reconciliation will ultimately
have to be reached through negotiations between the parties concerned, a lasting
and prosperous reconciliation must, out of respect for the victims, be based
on such elementary justice. Impunity for human rights violations is contrary
to States’ legal duty to ensure the effective protection of such rights
under international law. De facto failure to prosecute human rights violations
as well as laws that grant impunity for such violations amount to breaches of
international law. The requirement that States prohibit impunity is also applicable
to acts carried out by private individuals. Impunity for serious human rights
violations such as arbitrary killings, disappearances and torture creates particular
hardship for victims and their next-of-kin and must be prevented. Respect for
the dignity of the human person demands that such violations be recognized,
punished and redressed. Sustainable national reconciliation is likely to prove
unattainable in a situation where the basic interests of victims of serious
human rights abuses are not acknowledged.

4. The Role of Judges, Prosecutors and Lawyers in Ensuring Justice for Victims
of Crime and Human Rights Violations

Whether a person is a victim of crime or human rights violations, this chapter
has shown the essential role of judges, prosecutors and lawyers in responding
effectively to the problems, needs and rights of the victim concerned. Members
of the legal professions must not only be courteous and show understanding;
they must also have a sound knowledge of human rights law and be prepared at
all times to act impartially and independently in the pursuit of justice. Indeed,
without an independent and impartial judiciary, as well as independent prosecutors
and independent lawyers who are given the liberty to act promptly, vigorously
and effectively in response to alleged human rights violations, human rights
will largely remain a dead letter. It is for all States to grant the legal professions
this independence and impartiality, and for the members of the legal professions
to take the lead in enforcing human rights law by vigorously investigating and
prosecuting acts that violate individual rights and freedoms.

5. Concluding Remarks

This chapter has focused in the first place on protection and redress for victims
of crime and, secondly, on protection and redress for victims of human rights
violations. While international law is somewhat lacking in legal provisions
relating to the rights of victims of ordinary crime, the opposite is true in
the case of victims of human rights violations. In this area, numerous legal
provisions and a comprehensive jurisprudence provide a rich source of knowledge
and inspiration for the legal professions. States’ legal duty to prevent,
protect, investigate, prosecute, punish and redress human rights violations
has been given ample coverage in this chapter. Although there has been a tendency
to focus on the right to life and the right to freedom from torture and other
forms of ill-treatment and violence, the same obligations exist with regard
to the whole spectrum of human rights. As rights are interdependent, their effective
protection cannot be examined in isolation. Torture victims, for instance, must
be able to speak freely in order to vindicate their rights and must enjoy respect
for their correspondence in order to be able to communicate with legal counsel
and so forth. This intrinsic relationship among rights becomes particularly
relevant to the enjoyment in crisis situations of those rights that cannot be
derogated from in any circumstances and others that can, in principle, be derogated
from. This will form part of our analysis in the last chapter of this Manual.

_______________________
Notes

1. For an international treaty on this issue, see Convention
on Cybercrime (ETS No. 185) signed in Budapest on 23 November 2001. The Convention
is open for signature by the member States of the Council of Europe and non-member
States that participated in its elaboration, and is open for accession by other
non-member States. It requires 5 ratifications including at least 3 member States
of the Council of Europe in order to enter into force. As of 23 June 2002, only
Albania had ratified the Convention; see http://conventions.coe.int

2. See UN doc. E/CN.15/1997/16, Use and application of the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, note by the Secretary-General, para. 1.

3. UN doc. A/CONF.144/20, Annex, Guide for Practitioners Regarding
the Implementation of the Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power (hereinafter referred to as UN doc. A/CONF.144/20,
Annex, Guide for Practitioners).

8. See Explanatory Report on the European Convention on the
Compensation of Victims of Violent Crimes, http://conventions.coe.int/treaty/en/Reports/Html/116.htm
(Council of Europe web site), p. 1, para. 1 (hereinafter referred to as\ Explanatory
Report). This Explanatory Report does not, however, “constitute an instrument
providing an authoritative interpretation of the Convention although it might
be of such a nature to facilitate the application of the provisions contained
therein” p. 1, para II.

37. In cases where the criminal activities have caused “substantial
harm to the environment, restitution, if ordered, should include, as far as
possible, restoration of the environment, reconstruction of the infrastructure,
replacement of community facilities and reimbursement of the expenses of relocation,
whenever such harm results in the dislocation of a community” (paragraph
10 of the Declaration of Basic Principles). In such cases, restitution can be
a powerful means of encouraging enterprises to use environmentally friendly
means of production and to adopt measures to prevent or minimize the risk of
ecological disaster. Another case in point is the transport of toxic substances
or substances that may otherwise be harmful to the environment by means of transportation
that do not comply with required safety measures. However, where multiple acts
of arson by individual persons destroy large areas of forest and numerous dwellings,
restitution by the offenders is illusory.

69. The present chapter is based only on legal provisions
interpreted by international monitoring bodies. The question of remedies for
victims of human rights violations has, however, also been dealt with, inter
alia, by the United Nations Commission on Human Rights; see, for example, UN
doc. E/CN.4/2000/62, The right to restitution, compensation and rehabilitation
for victims of gross violations of human rights and fundamental freedoms, Final
report of the Special Rapporteur, Mr. M. Cherif Bassiouni; see, in particular,
the annex to this report containing draft Basic Principles and Guidelines on
the Right to a Remedy and Reparation for
Victims of Violations of International Human Rights and Humanitarian Law.

71. See General Comment No. 3 (Article 2 – Implementation
at the national level), in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies (hereinafter
referred to as United Nations Compilation of General Comments), p. 112, para.
1; emphasis added.

78. Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment
of 28 March 2000, para. 85 of the text of the judgment as published at: http://echr.coe.int/.

79. Ibid., loc. cit.; emphasis added.

80. Eur. Court HR, McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A, No. 324, p. 49, para. 161. In order
to secure the right to life under article 2 of the Convention, the High Contracting
Parties are thus under an obligation to resort to effective measures of prevention,
investigation, suppression and punishment of violations of this right. It is
noteworthy that the obligation to prevent offences against the person is not
necessarily complied with by the implementation of general preventive policy
measures but may, in individual cases, also imply a duty to take positive measures
of an operational nature
(see infra, subsection 3.3).

81. Eur. Court HR, Case of Ozgur Gundem v. Turkey, judgment
of 16 March 2000, para. 42 of the text of the judgment as published at: http://echr.coe.int/.

86. Eur. Court HR, Case of X and Y v. the Netherlands, judgment
of 26 March 1985, Series A, No. 91: in this case the Government had a positive
legal duty to ensure an effective right to respect for the private life of a
mentally handicapped girl who had been raped but who was legally unable to institute
criminal proceedings against the alleged perpetrator of the crime; this gap
in domestic law constituted a violation of article 8 of the European Convention,
p. 14, para. 30. See also Eur. Court HR, A. v. the United Kingdom, judgment
of 23 September 1998, Reports 1998-VI: in this case domestic law did not provide
adequate protection for a child who had been beaten by his stepfather; “the
failure to provide adequate protection” constituted a violation of article
3 of the European Convention, p. 2700, para. 24.

87. On the preventive role of legislation criminalizing ideas
based on racial superiority, see the Committee on the Elimination of Racial
Discrimination, in UN doc. GAOR, A/56/18, p. 59, para. 349.

88. On the importance of international and cross-border cooperation
for the purpose of preventing trafficking in women, see the Committee on the
Elimination of Discrimination against Women, in UN doc. GAOR, A/55/38, p. 38,
para. 372.

138. Ibid., para. 126. For cases involving a violation of
article 13 relating to the right to life or freedom from torture, see also Eur.
Court HR, Case of Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI,
pp. 2286-2287, paras. 95-100, and Eur. Court HR, Case of Avsar v. Turkey, judgment
of 10 July 2001, paras. 421-431; for the text of the decision see http://echr.coe.int

174. See, for example, among numerous cases: Eur. Court HR,
Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, paras. 133-139 of
the text as published as at http://echr.coe.int and Eur. Court HR, Case of Price
v. the United Kingdom, judgment of 19 June 2001, para. 34 of the text as published
as at http://echr.coe.int

175. Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment
of 28 March 2000, paras. 133-139 of the text as published at http://echr.coe.int